IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110119

Docket: M090170

Registry:
New Westminster

Between:

Robert E.
MacKenzie

Plaintiff

And

John J. Rogalasky

Defendant

Before:
The Honourable Madam Justice Ker

Reasons for Judgment

I.      
 

I.       Introduction

[1]            
The plaintiff, Robert MacKenzie, claims damages for soft tissue injuries
he sustained in a motor vehicle accident on April 10, 2003, (the “accident”)
when his vehicle was struck by Mr. Rogalasky, the defendant in these
proceedings, while at the intersection of Burrard St. and Georgia St. in
Vancouver, British Columbia.

[2]            
On the date of the accident, Mr. MacKenzie, a talented Chef with the
Boathouse Restaurant group (the Boathouse) in the Lower Mainland, was
travelling to the monthly meeting of the Head Chefs at the English Bay
Boathouse Restaurant.  Mr. MacKenzie was driving southbound on Burrard St. and
was in the middle lane of traffic.  To his left was a BC Transit bus which
blocked his vision.  The defendant, who was driving northbound on Burrard St.
in his 1978 Lincoln Continental, made a left turn across Burrard St. onto
Georgia St. Mr. Rogalasky turned directly into Mr. MacKenzie’s path of travel
and hit Mr. MacKenzie’s Dodge Dakota truck in the front left quadrant of the
vehicle, near the front tire.  The force of the collision pushed Mr.
MacKenzie’s truck over into the curb lane.

[3]            
The defendant admits liability but disputes the issue
of causation and the amount of damages claimed.

[4]            
Mr. MacKenzie, who was 41 years old at trial, is
currently employed as a purchaser with Albion Fisheries (Albion).  At the time
of the accident, Mr. MacKenzie was the Head Chef for the New Westminster
Boathouse Restaurant and had been working as a chef with the Boathouse for
about seven years when the accident occurred.  Mr. MacKenzie’s career as a chef
was still on an upward trajectory and he was viewed as a strong contributor
within the organization, rising steadily since the start of his apprenticeship
with the Boathouse in 1994. He was continuing to see professional and financial
advancement when the accident occurred.  Before the accident, Mr. MacKenzie was
an energetic, hard working man who enjoyed his chosen profession, took pride in
his work and led a physically active lifestyle.

II.     Position
of the Parties

[5]            
Mr. MacKenzie contends, as a result of the
accident, he sustained soft tissue injuries to his neck, shoulders, mid back,
and lower back. Seven years after the accident he continues to suffer
from chronic pain, manifested primarily in his mid and lower back area with
flare ups in his neck and shoulder area as well.

[6]            
Mr. MacKenzie continued to work as a Head Chef
with the Boathouse until November 25, 2005, at which time he was unable to
continue in that capacity; the long hours and physical demands of the position
exacerbating the continuing chronic pain symptoms from his accident injuries.

[7]            
Mr. MacKenzie claims damages for pain and
suffering, past income loss, loss of future earning capacity, cost of future
care and special damages for the expenses he incurred for treatments as a
result of the accident, once the Insurance Corporation of British Columbia
(ICBC) discontinued coverage of his physiotherapy treatments.

[8]            
The defence acknowledges Mr. MacKenzie was
injured in the accident but contends he only experienced a mild soft tissue
injury that resolved.  The defence argues the cause of the continuing chronic
pain Mr. MacKenzie complains of is his overall de-conditioning and obesity, as
outlined in the April 11, 2008, report of Dr. John Oliver, an orthopaedic
surgeon retained by the defence to conduct an independent medical examination
(IME) of Mr. MacKenzie.

[9]            
The defence also argues Mr. MacKenzie has failed
to take reasonable steps to assist in his own recovery by not diligently
pursuing an exercise program in 2006 as recommended by his various doctors and
treatment providers.

[10]        
In sum, the defence argues any award Mr.
MacKenzie is entitled to for pain and suffering should be modest, as the
continuing symptoms are not the result of the injuries sustained in the
accident.  As well, any award should also be reduced by 10% to 25% as a result
of the plaintiff’s failure to mitigate.  The defence argues Mr. MacKenzie has
suffered no other form of loss apart from a minor amount of special damages and
possibly two items proposed under the cost of future care head of damages.

III.   Issues

[11]        
The issues on this trial can be distilled to the
following:

1.       Has the plaintiff established on a balance of probabilities
the accident caused the soft tissue injuries to his neck, shoulders and mid and
lower back, which still manifest as chronic pain in those areas?

2.       Are the continuing symptoms of chronic pain experienced by
the plaintiff as a result of the injuries sustained in the accident or due to
his obesity and de-conditioned status?

3.       If the accident is the cause of the plaintiff’s injuries,
including the continuing chronic pain and associated symptoms the plaintiff is
still experiencing, what damages should the plaintiff receive?

4.       Has the defence established to the requisite standard the
plaintiff failed to mitigate in this case?

IV.  The Trial

[12]        
In this trial, the plaintiff testified and also called: Debra Lee
MacKenzie, his older sister; Christopher Harrison, Raymond Kishi and David
Nurse, three friends whom he worked with at the Boathouse and two of whom work
with him at his new employer, Albion; and David Smith, a friend who shared an
enthusiasm for riding motorcycles.

[13]        
The plaintiff also filed a number of expert reports.  These reports
included three written reports from his family physicians, Dr. David Owers and
Dr. Ronald Greenberg.  Dr. Owers was also called as a witness at the trial.  In
addition, the plaintiff filed a report of, and called as an expert witness, Dr.
David Hunt, a physician with a subspecialty in pain medicine.  Finally, the
plaintiff filed reports prepared by his two treating physiotherapists, David
Moffat and Mina Kavia, as well as a report from Susan Woo, the Registered
Massage Therapist (RMT) he attends for treatments.

[14]        
Counsel for the defendant cross-examined the plaintiff and the witnesses
called on his behalf.  He also called four witnesses to address the plaintiff’s
employment history with the Boathouse and Albion, as well as a private
investigator who conducted video surveillance of the plaintiff in October and
November 2009.  To that end a DVD of the video surveillance was marked Ex. #17
and played during the trial.  The defence also tendered a medical report
prepared by Dr. John Oliver, the orthopaedic surgeon who conducted the IME on
the plaintiff on April 11, 2008.

V.    Evidence at Trial

A.    The Plaintiff’s
Case

[15]        
The following is a summary of the evidence called by the plaintiff
relevant to his claim and the damages sought, accompanied by the findings of
the court as to the reliability, credibility and the significance of the same
to the determination of what awards, if any, should be made under the various
heads of damages the plaintiff seeks as compensation.

1.     The Non
Medical Evidence Adduced on Behalf of the Plaintiff

a)    
The Evidence of Robert MacKenzie – the Plaintiff

[16]        
Mr. MacKenzie is 41 years old.  He was born in Penticton,
grew up there and remained there until he turned 18.  Mr. MacKenzie has been
passionate about food and cooking since he was young.  He left school in Grade
8, preferring to work in restaurant kitchens and to pursue his love of making
food.  In 1991 he graduated from the two year Chef program at Vancouver
Community College.  He then worked as a cook at a variety of restaurants until
April 1994.

[17]        
In April 1994, Mr. MacKenzie obtained an
apprenticeship position with the Boathouse.  In 1996 he obtained his red seal
certification as a full-fledged chef.  Upon achieving his red seal status, Mr.
MacKenzie became acting Head Chef for the White Rock Boathouse Restaurant for
about six months while the Head Chef was ill.  In 1997 he became the Head Chef
for the Richmond Boathouse Restaurant and remained there for a couple of years.

[18]        
Mr. MacKenzie was then transferred from the
Richmond restaurant to the New Westminster Boathouse where he again was Head
Chef.  The move from Richmond to New Westminster was a promotion to a larger
restaurant with more responsibility.

[19]        
The position and responsibilities of a Head Chef
are formidable.  Mr. MacKenzie testified that as Head Chef he was responsible
for the hiring and staffing of the kitchen, scheduling training, and charting
the career path of employees selected to enter the apprenticeship program.  A
Head Chef also has the managerial function of overseeing labour and food
costs.  A Head Chef typically works a 12 to 16 hour day, with about 60% of that
time spent working in the kitchen overseeing production and ensuring quality. 
The Head Chef is also responsible for conducting the weekly inventory of all
aspects of the food and kitchen supplies, including appliances and utensils, as
well as preparing and submitting a weekly report addressing the inventory
status for the restaurant kitchen.

[20]        
Mr. MacKenzie outlined in his evidence the very
physically demanding nature of the position of Head Chef.  Conducting the
weekly inventory and preparing the accompanying report requires the handling,
examination, weighing and movement of all the food supplies, both dry goods and
frozen and fresh items.  It also requires an examination and inspection of all
the kitchen appliances and utensils.  Working “on-line” in the kitchen
preparing meals means ensuring the line is stocked for the service of meals and
involves lifting and moving heavy pots (sometimes weighing 40 to 50 pounds) of
items like boiling water and potatoes, rice or pasta; or handling and moving
large bags of rice, or large sections of meat and other similar items.  Once
on-line for the dinner service, Mr. MacKenzie was often unable to leave the
area between 5:00 p.m. and 10:00 p.m. for more than a quick drink of water if
it was a busy night.

[21]        
In addition to working as the Head Chef with the
Boathouse in New Westminster at the time of the accident, Mr. MacKenzie also
worked part time in the accessories department at Richmond Motorsports, a
retail store for motorcycle equipment.  Mr. MacKenzie fitted customers with
motorcycle leather suits (“leathers”), helmets and safety gear.  He worked at
this position due to his enthusiasm for motorcycling as one of the benefits of
employment included an employee discount of 30% on any products he needed for
his motorcycle.  Prior to the accident he earned about $4,000 a year from this
position.

[22]        
In addition to his employment with the Boathouse
and his part-time work with Richmond Motorsports, Mr. MacKenzie had a number of
recreational activities he pursued on a regular basis.  He rode his sport bike motorcycle
two to three times a month on day long road trips to Whistler and other areas,
and also used his motorcycle as transportation to commute to work.  He was also
an avid mountain bike cyclist and enjoyed rollerblading and water skiing with
his friend David Nurse.  In the wintertime he enjoyed snowboarding a couple of
times a month.  Although not a proficient golfer, Mr. MacKenzie enjoyed golfing
and went out on the golf course or driving range one or two times a month
before the accident.

[23]        
Mr. MacKenzie also enjoyed going on hikes and
long walks with his girlfriend once or twice a month when they had the time. 
Due to Mr. MacKenzie’s stature, 6’1” and a heavier set build, approximately 225
to 240 pounds at the time of the accident, he also worked out with his
girlfriend at a gym in Maple Ridge three to four times a week for 30 to 90
minutes, depending on whether it was before or after work.

[24]        
Prior to the accident, Mr. MacKenzie did not
have a regular family doctor. He had no difficulties with his back, shoulders
or neck and had lost no time from work.  He had no limitations with his
physically demanding work, apart from the normal pain, tightness and fatigue
one experiences after spending 7 to 16 hours standing on their feet.  Although
he may have experienced discomfort when lifting heavier items in the 80 to 90
pound range while at work before the accident, Mr. MacKenzie never experienced
any sharp pain when performing those sorts of tasks.  He also had no physical
limitations in his recreational pursuits.

[25]        
Prior to the accident, Mr. MacKenize had
experienced knee pain which he understood was attributed to having fallen
arches in his feet.  He was prescribed orthotics to help support his arches.

[26]        
On the morning of April 10, 2003, Mr. MacKenzie
was driving from his residence in Maple Ridge to the English Bay Boathouse
Restaurant in Vancouver for the monthly meeting of the Head Chefs and Executive
Chef with the Boathouse.  Mr. MacKenzie was driving his Dodge pickup truck
southbound on Burrard St., travelling in the middle lane of traffic.  A transit
bus was in the inner most lane closest to the centre line.  As he approached
the intersection with Georgia St., the traffic on Burrard St. had a green light
and Mr. MacKenzie entered the intersection.  The defendant’s northbound vehicle
turned left across the southbound lane of traffic on Burrard St. and struck the
driver’s side front wheel area of Mr. MacKenzie’s truck, pushing it over into
the adjoining curb lane.  During the collision, Mr. MacKenzie’s left leg, arm
and shoulder hit the driver’s side door of his vehicle although his head did
not make contact with the window.

[27]        
As a result of the collision, the front driver’s
wheel on Mr. MacKenzie’s truck was damaged and the tire started to deflate. 
Mr. MacKenzie did not feel any pain immediately after the accident and was able
to change the tire on his truck before continuing on to his meeting.  Although
Mr. MacKenzie’s truck sustained no damage to the body of the vehicle in the
accident, once he started to drive away he could tell the steering was “off” as
he had difficulty keeping the vehicle straight.

[28]        
Mr. MacKenzie went on to the meeting at the
English Bay Boathouse and after the meeting had his friend and colleague Chris
Harrison follow him home due to his concerns about the steering of his vehicle.

[29]        
Mr. MacKenzie started to feel stiff later in the
day, associating that to tensing up in the collision.  He took some Ibuprofen
and tried to relax.  The day after the accident, April 11, 2003, Mr. MacKenzie
noticed his neck, shoulders and back were quite stiff and felt pain mainly in
his neck and back.  Mr. MacKenzie went to a walk-in clinic and was advised by
the attending physician, Dr. Lam, it was normal to feel sore after an accident
and to monitor what he experienced over the next few days.

[30]        
Mr. MacKenzie returned to the clinic when his
stiffness and pain did not improve.  Exhibit #1 establishes he saw Dr. Wong on
April 21, 2003, and had his first consultation with Dr. Owers on April 25,
2003.

[31]        
Immediately after the accident, Mr. MacKenzie
missed one day of work and then returned to his normal duties as the Head Chef
at the New Westminster Boathouse.  The lifting and repetitive nature of some of
the positions aggravated the stiffness and pain he was experiencing in his neck,
shoulders and back and so by the end of April 2003, Mr. MacKenzie took a week
and a half off work in an effort to have the symptoms subside.

[32]        
Upon returning to his full-time work, Mr.
MacKenzie noticed his symptoms had not subsided and so from May 25, 2003, until
June 22, 2003, he worked shorter hours, four hours a day, and lighter duties. 
After a month of reduced hours and lighter duties, Mr. MacKenzie followed Dr.
Owers’ advice to remain active within reason, as opposed to doing nothing, and
returned to full time duties as the Head Chef at the New Westminster
Boathouse.  Continued shorter shifts and light duties after this period of time
were not an option for him.

[33]        
Throughout the remainder of 2003 and through to
the end of March 2004, Mr. MacKenzie attended physiotherapy treatments on
average five to six times a month, even more so in May and June 2003.  Mr.
MacKenzie initially saw David Moffat at the Maple Ridge Physiotherapy and Pain
Clinic.  The treatments involved acupuncture and ultrasound therapy.  Mr.
MacKenzie’s treatments, except for a $10 user fee, were initially covered by
ICBC, but those benefits were discontinued at the end of January 2004.  All
treatments after January 2004 were paid in full by Mr. MacKenzie or through the
assistance of a family member.

[34]        
Mr. MacKenzie testified Mr. Moffat’s treatments
offered some temporary relief from the pain he was experiencing in his neck,
shoulders and back, though the treatments did not resolve the problem and he
was never pain free.  However, the treatments allowed him to move and function
at work more easily. Mr. MacKenzie explained the original techniques used by
Mr. Moffat left him sore for a couple of hours and offered three to four days
of relief in terms of improvement in his movement but after that he would
require another treatment.

[35]        
Mina Kavia, a physiotherapist originally with
the Maple Ridge clinic, treated Mr. MacKenzie a couple of times when Mr. Moffat
was away on holidays.  Mr. MacKenzie testified Ms. Kavia used an electronic
pulse in the acupuncture needles and, although the treatment was more painful,
he felt better after the treatments.  As a result of this, Mr. MacKenzie
switched to Ms. Kavia as his physiotherapist and followed her when she left the
Maple Ridge clinic and moved into Vancouver.  In addition to using acupuncture,
Ms. Kavia also used Intramuscular stimulation (“IMS”) injection techniques on
Mr. MacKenzie starting in July 2004.  Mr. MacKenzie explained the IMS
injections were extremely painful and exhausting but provided longer periods of
improved movement than the ultrasound and traditional acupuncture techniques.

[36]        
Mr. MacKenzie explained that when he first
started physiotherapy he was able to arrange his treatments either on a day off
or, if he did not have to start work until 11 a.m., he would attend in the
morning before work.  Once he switched to Ms. Kavia and started attending her
clinic in Vancouver he could only attend for physiotherapy treatments on his
day off.

[37]        
By the end of 2003, Mr. MacKenzie’s neck,
shoulder and back pain had not resolved and his work continued to exacerbate
the situation.  However, Mr. MacKenzie was devoted to being a chef, it was his
passion, and so he continued to work and rely upon the temporary relief that
physiotherapy, IMS injections and acupuncture therapy provided to help him
continue to function in his employment.  Mr. MacKenzie continued to work as the
Head Chef at the New Westminster Boathouse in 2004 and also regularly attended
for physiotherapy treatment with Ms. Kavia at least once a month, sometimes two
times a month, after March 2004.

[38]        
Mr. MacKenzie testified he has been restricted
in his extracurricular activities since the accident. He has not been able to
ride his motorcycle since the accident.  He tried it once and found it to be too
painful as the position on his sport bike aggravated his neck.  He explained he
did not try a different style of motorcycle as riding a sport bike was the only
type he enjoyed and a Harley style motorcycle held no appeal for him.  He tried
riding an upright motorcycle in the summer of 2007 or 2008 but found it painful
as there was more pressure down his spine and bumps in the road hurt his hips.

[39]        
After the accident, Mr. MacKenzie was unable to
play golf until he started group lessons in the fall of 2009.  He tried it once
in 2004 but found it to be very painful and frustrating.  In 2004, his walks
and hikes had slowed to 50% of their original speed and the distance decreased
to a quarter of what he was able to do prior to the accident.  He tried snowboarding
once with some of his co-workers in late 2003 or early 2004, but was unable to
do more than one or two runs as it was also too painful.

[40]        
Mr. MacKenzie also discontinued his work at
Richmond Motorsports as he was not able to ride his motorcycle anymore, and
because he could not work both that job and his full complement of duties with
the restaurant without feeling burned out and seized up.

[41]        
In September 2004, Mr. MacKenzie and his
girlfriend separated and sold the condominium they owned in Maple Ridge.  Mr.
MacKenzie then moved into a basement suite in Coquitlam with the help of some
friends.  The heaviest item he lifted was a television set and he had
assistance for that item.  Although he did not experience any increased pain
beyond the usual residual pain, Mr. MacKenzie testified he did not do a lot of
the lifting and relied upon his friends to move him.

[42]        
At the end of 2004, Mr. MacKenzie was asked to
apply for the position of Head Chef at the White Rock Boathouse Restaurant.  In
cross-examination he acknowledged he was asked to take on the task as the
restaurant needed someone strong to rectify the problems that particular
location was experiencing, and his organizational skills and “ability to
execute” while at New Westminster appeared to be what the restaurant needed. 
Mr. MacKenzie was aware the position might be somewhat more demanding than the
New Westminster restaurant.  However, he elected to accept the position as he
felt it would provide him with greater financial freedom as the transfer would result
in an increase in his salary and likely an increase in any bonus.

[43]        
Mr. MacKenzie transferred to the White Rock
Boathouse restaurant in January 2005 and until the fall of 2005 the general
manager was Roger Lewis.  Mr. MacKenzie was managing, overseeing and running
all three floors of the restaurant, including two kitchens above ground and the
production kitchen in the basement.  The restaurant was extremely busy and
hectic.  The staff were not permitted to use the elevator, except when
customers were not present.  As a consequence, Mr. MacKenzie had to continually
travel between floors using the stairs.  Mr. MacKenzie anticipated his hours in
White Rock would be longer than in New Westminster but had not expected a 30%
increase in the hours he had to work at the new location.  Mr. MacKenzie
testified that working shorter shifts was not an option, or feasible, at this
restaurant location.

[44]        
While Mr. Lewis was the General Manager of the
restaurant, Mr. MacKenzie was able to cope as best he could with the physical
demands of the White Rock location and continued to attend for physiotherapy
with Ms. Kavia and added massage therapy with Ms. Susan Woo.  Mr. MacKenzie
scheduled treatments on his days off whenever he could.

[45]        
Although his treatment providers warned Mr.
MacKenzie from time to time in 2005 that if he continued to work the hours he
did as a chef he would not be giving his body the opportunity to properly heal
and he would deteriorate, Mr. MacKenzie had great difficulty in accepting the
advice and was resistant to leaving his position.

[46]        
Sometime in the fall of 2005, Mr. Lewis was
replaced by Doug Lau as General Manager of the restaurant.  In the fall of 2005
the restaurant was not as busy, and so Mr. MacKenzie tried to spend more time
in his office on the ground floor of the restaurant.  Despite his efforts to
balance time on-line in the kitchen with office administrative work, Mr.
MacKenzie explained he had difficulty with Mr. Lau who wanted him “out on the
floor” and on-line considerably more than Mr. Lewis had required.  Mr. Lau felt
Mr. MacKenzie was under-performing.

[47]        
Contemporaneous with the increased physical
demands of the White Rock restaurant location, the increase in tension at work
and the disagreement with Mr. Lau over where and how he should be performing in
his position as Head Chef, Mr. MacKenzie and his treatment providers noticed
his back becoming tighter, and with the increased physical and environmental
stress he was becoming more seized up.

[48]        
Mr. MacKenzie indicated time constraints from
his employment, where he was working basically morning to night, did not leave
him with time to attend the gym or make any concerted effort at active
rehabilitation apart from the physiotherapy and massage treatments he was
undertaking.

[49]        
Mr. MacKenzie testified that in November 2005
there was a “mutual parting of the ways” with the Boathouse and Mr. MacKenzie
left the employment of that organization.  Initially the Record of Employment
(ROE) was issued showing he resigned but Mr. MacKenzie disagreed with this characterization. 
The ROE was reissued to reflect he resigned due to a non-work related injury. 
Mr. MacKenzie denied he had the document changed so he could receive medical
disability and employment insurance retraining.  Mr. MacKenzie’s last day of
work was November 25, 2005, and he received a severance package of eight
additional weeks of pay, two weeks and five days vacation time and letters of
reference from his General Manager as well as the Boathouse’s Concept Chef and
Executive Chef.

[50]        
Mr. MacKenzie discussed his decision with Dr.
Owers and told him he quit his work because it was getting too painful for him
to carry on.  He had discussed previously with Dr. Owers the need to change
what he was doing as he would not be able to sustain the pace and get better.

[51]        
Upon leaving the Boathouse, Mr. MacKenzie
intended to spend the time to heal from his ongoing injuries rather than
continually push himself.  He received Employment Insurance assistance for one
year.  Mr. MacKenzie wanted to explore other areas of work, but discovered the
human resources management course he hoped to enrol in at BCIT required he have
Grade 12 English and Math.  As he had left school after Grade 8, Mr. MacKenzie
had to first upgrade his skills and obtain his Grade 12 equivalency.  He did
this over two semesters in 2006 through part-time studies at Douglas College.

[52]        
In addition to his part-time studies three days
a week, Mr. MacKenzie continued to see his physiotherapist and massage
therapist, although he stopped going to the massage therapist between March
2006 and October 2007 due to his limited financial means.

[53]        
In late 2005, Mr. MacKenzie purchased a gym pass
and returned to regular gym attendance two times a week using the recumbent
bike for his cardio work and stability balance balls to improve his core
strength.  For the first three months of 2006 his friend, Ryan Welton, who was
a personal trainer, assisted him in his exercise regime.  When his friend
became too busy, Mr. MacKenzie tried to continue to maintain the training but
acknowledged it dropped in frequency and intensity.  He acknowledged he did not
feel as much pain when he was attending the gym but still felt fatigued.  His
attendance at the gym then stopped after a few months as he became busy trying
to upgrade his education and was unable to attend to everything.

[54]        
Mr. MacKenzie acknowledged in cross-examination
Dr. Owers referred him to Dr. O’Connor, a physiatrist, whom he saw in January
2006.  He acknowledged Dr. O’Connor talked about the need to work on his
conditioning and recommended he walk a number of times a week for short periods
of time, gradually increasing the length, and the need to engage in exercise to
elevate his heart rate.  Dr. O’Connor also recommended he do core strengthening
exercises.

[55]        
Mr. MacKenzie acknowledged that after the
accident until late 2005 he did not attend the gym on a regular basis but tried
to go on occasion with his girlfriend until they separated in September 2004.

[56]        
Mr. MacKenzie acknowledged he started to gain
weight in 2006, and attributed this to his decreased level of activity in not
working, and in eating three meals a day. Previously, when he worked as a chef
he usually only had time for one meal a day.

[57]        
In early 2006, Mr. MacKenzie obtained part-time
work with TCI, a company that imports motorcycle parts, in its warehouse. 
Although he only worked five to six hours two days a week, and did not lift
parts weighing more than 15 to 20 pounds, Mr. MacKenzie was unable to endure
the significant amount of walking and pushing a cart through the warehouse as
it aggravated his back.  After two months he resigned from the position.

[58]        
In late 2006, Mr. MacKenzie briefly obtained a
part time position doing security work at the Big Star Night Club in Burnaby. 
He only worked four or five shifts that were 6 to 7 hours in length.  He was
not involved in any altercations but left the position because it hurt his
back.

[59]        
By December 2006 Mr. MacKenzie was experiencing
financial difficulty as Employment Insurance benefits were significantly less
than his salary as a chef.  At this same time Mr. MacKenzie received rejection
letters from BCIT and Royal Roads for their human resources courses.  As a
consequence of these two events, Mr. MacKenzie started to look for work and
found a position as a purchaser with Albion.

[60]        
Mr. MacKenzie started to work at Albion in
January 2007.  He described his new position as a lot less physically demanding
as it involved a lot of sitting, talking on the telephone and using a
computer.  The hours of 6:30 a.m. to 3:30 p.m. five days a week were not too
demanding.  Although his back continued to be sore, more so towards the end of
the work week, he found he was able to sit and stand as needed and was able to
control his physical activity much more so than when he was a chef.

[61]        
In January 2008, the position of manager of
purchasing became available at Albion.  Mr. MacKenzie, wanting a new challenge,
applied for the position and became the purchasing manager for Albion.  He
thought the position would be more administrative, but discovered he was
responsible for purchasing; supervising eight employees in Vancouver, Victoria
and Alberta; and also carrying seven different product lines.  As a manager,
his hours extended to 6 a.m. to 5 or 7 p.m., sometimes six days a week.

[62]        
Mr. MacKenzie found the combination of the
stress of not having the skill set to properly perform as the manager of
purchasing, coupled with the longer hours, resulted in increased tension in his
back and he was not able to keep up with the demands of the position.  On
November 25, 2008, Mr. MacKenzie returned to his position as a purchaser within
Albion and another purchaser with more experience took over as the purchasing
manager.  He acknowledged Ex. #12 was the e-mail he wrote when he resigned as
purchasing manager.  The e-mail indicated his decision to step down as
purchasing manager and return to the position of purchaser was done so he could
improve his skill set as a purchaser before trying to become purchasing manager
at a later juncture.  With the return to the position of purchaser and his
hours of 6:30 a.m. to 3:30 p.m. and the reduced level of stress, Mr. MacKenzie
was able to hone his skills and found 2009 to be an enjoyable year at Albion.

[63]        
In terms of physical activity in 2009, Mr.
MacKenzie indicated he walked with people at work for 30 to 40 minutes a day
which was the limit of what he could tolerate.

[64]        
In the fall of 2009, Mr. MacKenzie started to
golf again and took group lessons with his sister, Ray Kishi and a friend.  His
instructor helped him modify his swing so he could enjoy the game.  Mr.
MacKenzie played golf at an executive course a couple of times and went to the
driving range to practice.  He found he was tight and that it definitely hurt
after playing but it was better than when he had tried to play in 2004.

[65]        
Mr. MacKenzie explained that although video
surveillance depicted him in November 2009 carrying his golf bag and clubs from
his vehicle into the driving range, the bag and contents weighed no more than
24 pounds.  Mr. MacKenzie testified that after a period of practicing on the
driving range with Mr. Kishi, as captured by a long segment on the video
surveillance, he definitely felt stiff the next day.  However, he testified it
was nice to get outside and feel like he was actively doing something, as compared
to sitting on a bike at the gym.

[66]        
Mr. MacKenzie explained the video surveillance
of him leaving work on October 30, 2009, depicted him carrying three Styrofoam
boxes containing seafood products he purchased for himself and a friend. 
Exhibit #8, the invoice for the purchases, establishes the weight of the
seafood purchased and carried in the Styrofoam boxes was about 16.39 pounds. 
Mr. MacKenzie explained he had no difficulty carrying this weight in the boxes
as he distributed the boxes between both hands and used the nylon straps
sealing the boxes as carrying straps.

[67]        
Before leaving the Boathouse, Mr. MacKenzie
attempted to obtain an executive chef position by applying at three different
locations posting such a position.  He was unable to pass the physical for two
locations.  He realized the third location, in Steveston where he did a working
interview and was offered a position, was more a hands on Head Chef position
than an executive chef position.

[68]        
Mr. MacKenzie also applied for a position as a
chef with Holland America cruise ship line and went through the preliminary
interview process.  He learned any injuries would defeat his application. 
Although he hoped to apply for an executive chef or executive sous chef
position, something that involved more administrative duties, he was
unsuccessful.  He also applied for an executive sous chef position at a resort
in Thailand and the conversations he had seemed promising but ultimately he was
not the successful candidate.

[69]        
Before the accident, it was Mr. MacKenzie’s
intention to use his training and experience as a chef to travel and work
abroad.  He also aspired to open his own restaurant, and testified he would do
so if he was physically capable.  He now realizes he is not capable of this,
and would have to hire a Head Chef to do the physical work given his current
condition.

[70]        
Although teaching as an instructor at a chef
school might be a possible alternative career, Mr. MacKenzie noted instructing
is every bit as physical as working as a Head Chef and involves prolonged hours
of standing and walking about the kitchen as well as lifting heavy items.

[71]        
Mr. MacKenzie continued his physiotherapy
treatments and returned to massage therapy treatment in October 2007.  Exhibit
#1 establishes that from January 2007 through September 2009 Mr. MacKenzie
continued to attend for physiotherapy at least once a month, more often two or
three times a month, with the exception of June and July 2007 and April and May
2009.  His last physiotherapy treatment is noted as September 21, 2009. 
Insofar as massage therapy is concerned, Ex. #1 establishes he returned to
massage therapy with Ms. Woo in October 2007 and with the exception of March
2008 and August 2009 when no massage therapy treatments were provided, Mr.
MacKenzie has attended for massage therapy consistently at least once a month,
often two or three times a month, through to December 18, 2009.

[72]        
Mr. MacKenzie testified he continues to attend
physiotherapy with Ms. Kavia when she is available, her hours having been
reduced to working only on Mondays.  He also continues to regularly see Ms.
Woo, or an alternate RMT, for massage therapy.

[73]        
Mr. MacKenzie produced an itemized list of the
expenses he has paid for the various treatments incurred since the accident. 
Exhibit #9 itemizes the special expenses and includes five charges of $20 as
fees for late cancellation of appointments and two charges of $45 for missed
appointments in 2008 when the treatment provider’s office failed to call with a
reminder about the appointment.  Mr. MacKenzie testified the total special
expenses incurred for his physiotherapy and massage therapy treatments and
other related expenses, less a deduction for ICBC’s reimbursement for 18
physiotherapy sessions and a pair of orthotics, is $9,365.44.

[74]        
Mr. MacKenzie testified his IME with Dr. Oliver
on April 11, 2008, was no more than 30 minutes and involved about 20 minutes of
taking his medical history and a 10 minute physical examination where the
length of his legs were measured, his hips were checked and he was asked to
bend forward a couple of times.  Mr. MacKenzie acknowledged what Dr. Oliver
produced in his report (Ex. #15) under the heading “Interview and Examination”
appeared to be an accurate account of what he told Dr. Oliver and that when
recounting his history to Dr. Oliver he was being truthful.

[75]        
In contrast to the IME with Dr. Oliver, Mr.
MacKenzie met with Dr. David Hunt, a pain consultant, on two occasions: October
8 and October 14, 2009.  He recalled each visit was approximately two to two
and half hours in length with 20 minutes in each visit devoted to conversation
and history taking and the remainder of the appointments taken up with physical
examination, checking movement and taking measurements.  Mr. MacKenzie
indicated he was truthful and accurate with Dr. Hunt in outlining his history
and symptoms and there was nothing in Dr. Hunt’s report he felt was an
inaccurate representation of what he had said.

[76]        
Mr. MacKenzie indicated he was prepared to
engage in all treatments Dr. Hunt recommended in his report, if they would help
him and if he received funding for the various treatments.  Insofar as
housecleaning is concerned, Mr. MacKenzie explained he and his roommate manage
as best they can, but he is unable to do much lifting in that area.

[77]        
When Mr. MacKenzie left his position at the
Boathouse restaurant, his gross income for 2005 was $57,116.10 and his net
income was $42,706.06.  At the time of the accident, Mr. MacKenzie had a gross
salary of $42,000 plus bonuses.

[78]        
Mr. MacKenzie’s gross employment income and net
employment income for 2006 through 2009, as established through income tax
information and outlined in the first part of Ex. #10 was as follows:

b)     The
evidence of Debra Lee MacKenzie – the Plaintiff’s Sister

[79]        
Debra MacKenzie is the plaintiff’s older sister.  She outlined for the
court the plaintiff’s background in terms of how he developed his passion for
cooking, which started when he was a young boy.  He would become involved in
the kitchen, making a mess, but had a keen eye for putting things together.  As
Mr. MacKenzie got older, he became very involved in making family dinners and
wanting to help his mother and grandmother, preferring to do so instead of
playing outside.  Her brother dropped out of school early in order to work in
restaurant kitchens.

[80]        
Ms. MacKenzie explained once Mr. MacKenzie became enrolled in formal
chef training he was very excited about it, and prior to the accident it was
exciting to be around Mr. MacKenzie when he was in the kitchen.  Most family
dinners were held at Ms. MacKenzie’s home, and when her brother got into the
kitchen he would teach her things, make fabulous meals and was “amazing to
watch.”  Most family gatherings such as Christmas, birthdays, anniversaries,
weddings and all manner of celebration would involve Mr. MacKenzie making meals
for the family.

[81]        
Ms. MacKenzie testified that prior to the accident her brother did a lot
of walking, was very enthusiastic about snowboarding and regularly went to the
gym to workout with his girlfriend.  He was also an avid motorcyclist.  Prior
to the accident, Mr. MacKenzie had no physical limitations or disabilities
other than one problem with his left eye but that did not limit him in any
degree.  Ms. MacKenzie described her brother’s personality as vivacious and
outgoing to the “nth degree.”

[82]        
In terms of involvement in family events since the accident, Ms.
MacKenzie testified she noticed her brother withdrawing from a lot of events
the family engages in. Instead of seeing her brother the three to five times
per month she used to see him before the accident, she now only sees him one or
two times per month.  Ms. MacKenzie describes her brother as sounding morose
when she talks to him, and he seems to be tired a good part of the time.

[83]        
Since the accident, Ms. MacKenzie noted that although her brother still
wants to be involved in family dinners, he is not able to do so to the same extent
and participates more as an observer.  She explained he will get physically
involved for 30 to 40 minutes but then has to rest and any re-involvement can
only be for a short period of time.  As well, prior to the accident her brother
was physically involved and would roughhouse with his nieces and nephews, but
since the accident he is not able to pick up the younger ones like he was able
to do in the years before the accident.

[84]        
Insofar as recreational activities are concerned, Ms. MacKenzie was
aware her brother was not doing his usual recreational activities, although
conceded in cross-examination she had never snowboarded or skied with her
brother.  In the fall of 2009 she encouraged her brother to golf with her and
explained she selected a particular instructor on the recommendation of a
friend.  The instructor Ms. MacKenzie and her brother and two friends use is
sensitive to various limitations and disabilities and tailors golfing lessons
around the individual’s limitations.

[85]        
Ms. MacKenzie testified that since starting the golf lessons, her
brother is enthused about something again.  He appears eager to get into a
position to be physically able to play golf, and as such the lessons have had a
positive effect upon him.  She noted, however, her brother still has some
difficulties and both part way through a game and immediately after a game he
has to sit down and rest.

[86]        
Ms. MacKenzie testified that since the accident and her brother’s drop
in income, as compared to his income before the accident, she is aware her
brother has had to turn to both his mother and his sisters to assist in paying
for his therapy or rent.  In addition, Ms. MacKenzie and another sibling have
bought Christmas presents for him for the family.  Ms. MacKenzie explained her
brother was embarrassed he had to turn to his mother and sisters for financial
assistance.

[87]        
Based on Ms. MacKenzie’s observations of her brother both prior to and
since the accident, she testified there is no doubt in her mind her brother
could not work as a chef again.  In her assessment, he is incapable of doing
the manoeuvres that are required and he cannot stand for long periods of time. 
Ms. MacKenzie testified that when her brother does stand for too long, he
starts to stoop and if he does not take a break he will break into a sweat.

c)     The
evidence of Christopher Harrison – the Plaintiff’s Friend and Work Colleague

[88]        
Chris Harrison first met Mr. MacKenzie in 1999, when the latter was the
Head Chef at the Richmond Boathouse and he hired Mr. Harrison as an entry level
cook.  Mr. Harrison remained at the Richmond Boathouse for about 1 1/2 years,
and was then transferred to New Westminster where he rejoined Mr. MacKenzie who
was then the Head Chef at the New Westminster Boathouse.  Mr. Harrison joined
the New Westminster Boathouse as a sous chef and apprenticed under Mr.
MacKenzie.

[89]        
Mr. Harrison explained that when he worked with him, Mr. MacKenzie as
Head Chef oversaw the assembly line for cooking to make sure the presentation
was proper and was also involved in being “on-line” for the dinner rush and
supporting every other position on the line in terms of preparation of meals,
cooking the meals and making sure they got out the door to the customer.

[90]        
Mr. Harrison was then transferred back to the Richmond Boathouse and
became Head Chef there for about one year before he left in early 2004 to
travel to Australia.

[91]        
Mr. Harrison explained, from his observations of Mr. MacKenzie, he was a
fun person to work with as he kept the kitchen in control, kept matters calm
and was the reason why Mr. Harrison wanted to become a chef.  He described Mr.
MacKenzie as being confident in taking a leadership role for all the junior
cooks and he was passionate about cooking and always trying to create new
dishes.  Essentially, Mr. MacKenzie enjoyed the rush of the kitchen.

[92]        
Prior to Mr. MacKenzie’s accident, Mr. Harrison observed no limitations
or disabilities with respect to meeting the physical demands of being a chef or
even in social activities such as riding black diamond mountain bike trails. 
As far as Mr. Harrison observed, Mr. MacKenzie never held anything back.

[93]        
On April 10, 2003, Mr. Harrison, then Head Chef at the Richmond
Boathouse, was at the meeting of the Boathouse chefs at the English Bay
Boathouse when Mr. MacKenzie arrived late after having been in the accident. 
After the meeting Mr. Harrison followed Mr. MacKenzie home as Mr. MacKenzie was
concerned about the steering on his truck as it was not able to properly
complete a turn.

[94]        
Between April 2003 and his departure to Australia for a year in early
2004, Mr. Harrison stayed in touch with Mr. MacKenzie but they did not engage
in their previous activities of mountain biking or golfing.  Upon returning
from Australia, Mr. Harrison worked at the Mylora golf course, running the food
and beverage department for two years, and then tried a different line of
work.  Throughout this time Mr. Harrison stayed in touch with Mr. MacKenzie.

[95]        
In May 2007 Mr. Harrison obtained employment with Albion in a sales
position selling the company’s products to local restaurant and hotel chains.

[96]        
Mr. Harrison sees Mr. MacKenzie on a daily basis now they are both
employed at Albion.  Mr. Harrison explained although Mr. MacKenzie’s
personality as being a sociable and gregarious individual is still the same,
Mr. Harrison sees Mr. MacKenzie engage in much more stretching and appears to
be very tired at the end of a long day.  He also sees Mr. MacKenzie sitting and
standing and frequently re-adjusting his position, particularly when in
meetings.

[97]        
Mr. Harrison explained Mr. MacKenzie’s work as a purchaser with Albion
is a lot less physically demanding than that of a chef.  Working as a chef is a
very demanding, physical job that involves lifting heavy pots, remaining on
your feet for long shifts, stocking refrigerators and undertaking a weekly
inventory of all food supplies.  As a purchaser with Albion, Mr. MacKenzie’s
position no longer requires the repeated heavy lifting and bending that are
part of a chef’s daily routine.

[98]        
Mr. Harrison agreed in cross-examination the job of a chef is very
demanding, involving long hours working most holidays and weekends.  His work
at Albion is much more structured, involves fewer hours and he has weekends to
himself.  Mr. Harrison noted he is paid more now for his work at Albion than
when he was last employed as a chef at the Boathouse in 2003.  However, the
difference between the wages Mr. Harrison earned in 2009 at Albion Fisheries as
compared to what he earned in 2003 at the Boathouse involved a difference of
six years and therefore did not necessarily provide an
accurate comparison.

d)     The Evidence of Raymond Kishi – the Plaintiff’s Friend
and Work Colleague

[99]        
Raymond Kishi is a receiving supervisor at Albion, where he has worked
since mid-2007.  Mr. Kishi has known Mr. MacKenzie since 1996 when Mr.
MacKenzie was the sous chef at the Richmond Boathouse and Mr. Kishi was hired
as a line cook.  Like Mr. Harrison and Mr. MacKenzie, Mr. Kishi worked his way
up to eventually become the Head Chef at the Richmond Boathouse.  After about
one year, he transferred to the Horseshoe Bay Boathouse and was Head Chef there
for two years.  Mr. Kishi then transferred to the New Westminster Boathouse and
was Head Chef there for two years until he left in mid-2007 and joined Albion.

[100]     While
employed as a chef with the Boathouse, Mr. Kishi sustained a repetitive work
injury and was also involved in a car accident.  Taking medication and
attending physiotherapy for these injuries made it difficult to be a chef.  Mr.
Kishi left his employment at the Boathouse in 2007 primarily because he wanted
a change of culture.  He found the hours required of a chef too long and he
wanted more structured work and was able to find that with Albion.

[101]     Mr. Kishi,
who has been Mr. MacKenzie’s roommate for the past five years, commented on Mr.
MacKenzie’s abilities as a Head Chef.  Prior to the 2003 accident, Mr.
MacKenzie, as Head Chef, was very active in the kitchen.  Mr. Kishi explained a
Head Chef remains standing for a significant amount of time during a shift, and
they need to be able to move heavy loads, take stock and prepare meals.  Prior
to the accident, Mr. Kishi observed no limitations in Mr. MacKenzie’s ability
to perform any of these activities and duties.

[102]     Mr. Kishi
testified the staff at Albion engage in social activities such as bowling,
paintball, hockey and a number of other activities.  Mr. MacKenzie has never
gone bowling or participated in paintball day and Mr. Kishi does not believe
Mr. MacKenzie is able to skate.  Mr. MacKenzie participated in the Albion golf
tournament for the first time in 2009 at the McCleery Golf Course.  The
tournament was a “best ball” tournament, not a full game tournament.  By the
end of it, Mr. MacKenzie appeared quite sore and very tired as it was a long
course to walk.

[103]     Mr. Kishi
explained that as roommates for the past five years he has been able to observe
Mr. MacKenzie and, since October 2009 has become involved in golf lessons with
Mr. MacKenzie and his sister and one other person.  Mr. Kishi explained that
due to Mr. MacKenzie’s physical limitations with his back he cannot rotate
fully; as a consequence, his backswing and follow through is more of a chipping
action.  When they play golf or take lessons, Mr. Kishi has observed Mr.
MacKenzie exhibit signs of discomfort such as stretching, cracking his back and
facial wincing.  Their golfing is always on the weekend in the afternoon and
not at the end of a work day.

[104]     Mr. Kishi,
who also had sports and motor vehicle related injuries, went to Mina Kavia on
the recommendation of Mr. MacKenzie for IMS treatments for his own back.  He
explained the treatment itself was very painful and after his first treatment
he had muscle spasms.  Mr. Kishi observed Mr. MacKenzie after IMS treatments
and noted he slept and relaxed in order to avoid the pain associated with the
treatments.

[105]     Mr. Kishi
agreed in cross-examination that part of the reason he left the Boathouse was
the fact that the hours as a chef were “getting out of hand” whereas his shift
work at Albion was more structured and he has his weekends and holidays to
himself.  Mr. Kishi’s salary from when he left the Boathouse compared to his
salary with Albion was not significantly different, a difference of
approximately $1,500.  Mr. Kishi agreed he was happier working at Albion than
he was at the Boathouse.

e)     The Evidence of David Nurse – the Plaintiff’s Friend and
Former Work Colleague

[106]     David
Nurse, a childhood friend of Mr. MacKenzie, is also a chef.  Mr. Nurse lived
with Mr. MacKenzie in Penticton for approximately three years until Mr.
MacKenzie moved to Maple Ridge in the early 1990s.  When they were roommates,
Mr. Nurse and Mr. MacKenzie did a lot of rollerblading, mountain biking and
water skiing as recreational pursuits.

[107]     Mr. Nurse
moved to the Lower Mainland in the late 1990s and was contacted by Mr. MacKenzie
who was then working as a sous chef at the Boathouse.  Mr. Nurse obtained a
position as a chef with the Boathouse in Horseshoe Bay.  For approximately
eight months in 1998 they worked together at the Richmond Boathouse until Mr.
Nurse was transferred to another restaurant.

[108]     Sometime
in 2000 or 2001, Mr. Nurse and Mr. MacKenzie started snowboarding at Whistler
and Cypress every couple of weeks.  Prior to the accident, in addition to
snowboarding, Mr. MacKenzie and Mr. Nurse would golf socially along with the
other chefs from the Boathouse.  He continued to rollerblade and snowboard with
Mr. MacKenzie when they were in the Lower Mainland.

[109]     For about
two years preceding the accident, Mr. Nurse lived with Mr. MacKenzie and his
girlfriend in their condominium in Maple Ridge.  During this time both Mr.
Nurse and Mr. MacKenzie started to gain weight and they decided to obtain a gym
membership and started working out together.  After the accident, Mr. Nurse
noticed Mr. MacKenzie did not go to the gym anymore, he stopped golfing with
the chefs and stopped rollerblading and snowboarding.  It seemed to Mr. Nurse
that after the accident, Mr. MacKenzie became depressed and gained a lot of
weight.

[110]     In 2004,
Mr. Nurse was a Chef at the New Westminster Boathouse and in 2005 he obtained
the position as Head Chef at the Kingston Tap House and Grill, a new concept
restaurant the Boathouse opened in downtown Vancouver.  Mr. Nurse felt that if
Mr. MacKenzie had been able to take on the arduous task of opening a new
restaurant he would have been chosen over him, but because of the accident was
not.  In 2006, Mr. Nurse was the Senior Chef at the English Bay Boathouse but
left the Boathouse and moved back to Penticton.  In 2008, he became a chef at
an Italian restaurant in Penticton and now is a part owner of the restaurant.

[111]     Mr. Nurse
explained that for any chef to run a successful restaurant they must work a
minimum of 10 hours per day, 5 days per week and that it is very demanding
work, with long hours on your feet doing heavy lifting and being involved in
the on-line preparation of meals.  Mr. Nurse indicated that when he and Mr.
MacKenzie worked together in Penticton they would often share the dream of
opening a restaurant.  Mr. Nurse was aware Mr. MacKenzie still had this dream
but, in Mr. Nurse’s opinion, given Mr. MacKenzie’s current physical state,
there is no way he could realize that dream.  Over the last couple of years,
since his move back to Penticton, Mr. Nurse has had less contact with Mr.
MacKenzie, seeing him only a couple of weekends in the summer.

[112]     When Mr.
Nurse left the Boathouse in 2006 he had been with them for approximately ten
years and was earning $55,000 per annum plus a bonus.

f)      The Evidence of Michael Smith – the Plaintiff’s Friend
and Former Work Colleague

[113]     Michael
Smith, a childhood friend of the plaintiff’s older brother, became interested
in motorcycles at a very early age and rode motorcycles all through high
school.  Mr. MacKenzie became interested in riding motorcycles at a young age
and through that interest became friends with Mr. Smith.  Their friendship
centered around motorcycle activities and included Mr. MacKenzie travelling to
visit Mr. Smith in Alberta each year between 1985 and 1999 for the Superbike
National Championships.

[114]     In 2000,
Mr. Smith moved back to the Lower Mainland and continued to share his
enthusiasm for motorcycle riding and motorcycle related activities with Mr.
MacKenzie.  They worked in the same motorcycle shop, Richmond Motorsports, and
worked for Richmond Motorsports at the annual motorcycle show held at the
Tradex Centre in Abbotsford, B.C.  Prior to the accident in April 2003, Mr.
MacKenzie had no limitations on his physical abilities in terms of his ability
to ride a motorcycle, load gear into trucks, haul gear around and go on lengthy
rides such as day long rides along the Duffy Lake route or Harrison Hot
Springs.

[115]     Insofar as
his part-time work at Richmond Motorsports was concerned, Mr. MacKenzie had no
difficulty with reaching for and handling the leathers displayed on high overhead
hangers nor did he have difficulty with obtaining the motorcycle helmets from
the storage area under the stairs prior to the accident.  After Mr. MacKenzie’s
accident, Mr. Smith asked Mr. MacKenzie on a number of occasions if he wanted
to do any riding, but Mr. Smith learned Mr. MacKenzie was unable to do so and
had made the difficult decision to sell his motorcycle.

g)     Findings from the Evidence Called by the Plaintiff (other than the
medical evidence)

[116]     I accept the testimony of Mr. MacKenzie and the witnesses he called,
who provided compelling evidence as to his work and personal life both prior to
and since the accident.  All of the witnesses who testified in the plaintiff’s
case, including and particularly Mr. MacKenzie, gave reliable, honest and straight-forward
evidence.  What emerges from a compilation and comparison of their disparate
observations, interactions and impressions of Mr. MacKenzie is a body of
evidence that clearly supports the reliability and trustworthiness of Mr.
MacKenzie’s claims as to the nature of the injuries he sustained in the
accident and the continued chronic pain he still experiences to do this day.

[117]     The evidence of Mr. Harrison, Mr. Kishi and Mr. Nurse based on their
own experiences as chefs leaves me with no doubt as to the physically
difficult, demanding and exhausting nature of the work associated with being a
chef and Head Chef.  The evidence of Mr. Harrison and Mr. Kishi, both of whom
worked under Mr. MacKenzie at periods of time in their careers, establishes Mr.
MacKenzie was more than capable of meeting the demands of the position prior to
being injured in the accident.

[118]     The evidence of Mr. Harrison, Mr. Kishi and Mr. Nurse also confirms
that prior to the accident Mr. MacKenzie was physically fit and active in his
recreational pursuits.  Since the accident they have all noted, to some degree,
Mr. MacKenzie is no longer able to engage in the recreational pursuits he so
enjoyed and shared with them prior to the accident.  It is also abundantly
clear from Mr. MacKenzie’s evidence, as confirmed by Mr. Harrison’s and Mr.
Kishi’s evidence, that Mr. MacKenzie is no longer capable of carrying on with
the physical demands of being a chef given his ongoing chronic pain.

[119]     I found Mr. MacKenzie to be careful and forthright in his evidence. 
He testified at length about his work and personal life before and after the
accident.  I found him to be a thoroughly credible and reliable witness.  It is
worth noting, as well, that in addition to Mr. MacKenzie’s viva voce
evidence on his continuing difficulties with chronic pain, particularly in his
lower back, and the need to move and change position frequently, he in fact did
just that during the course of his day and a half of testimony.  Thus his
demeanour and physical bearing while testifying served, in some small measure,
to confirm the difficulties he still experiences with his back.  While
testifiying, Mr. MacKenzie repeatedly moved between a seated and standing
position.  In addition he squirmed, shifted and rocked while seated and on at
least two occasions twisted and stretched his back during the course of his
evidence.  He clearly appeared to be physically uncomfortable and looked to be
experiencing some discomfort and pain while seated in the witness stand.  I did
not form the impression from his physical demeanour while testifying that Mr.
MacKenzie was simply acting, his bearing was consistent with that of a person
experiencing pain and difficulty with his back.

[120]     I accept Mr. MacKenzie’s evidence on the injuries he sustained, the
significant efforts he has made to treat and deal with the pain through various
therapies and working out as and when he was able.  It is clear from his
evidence he continued in his beloved profession as a chef for as long as he
possibly could, notwithstanding the continuing pain and difficulties he
experienced from his ongoing symptoms.  When the working conditions became
intolerable through increased demands by a new manager he perform more on-line
duties, coupled with the demanding physical configuration of the White Rock
Boathouse, he finally had to do what his physiotherapist and massage therapist
had warned he might have to do: leave his work as a chef.  Had the ongoing pain
not become so debilitating and chronic, I have no doubt Mr. MacKenzie would
have continued work as a chef.

[121]     Mr. MacKenzie clearly was an active and energetic young man who
functioned exceedingly well and at a high level in both his personal and
professional life prior to the accident.  He had no physical limitations or
impairments prior to the accident and engaged without difficulty in prolonged
and physically demanding work as a chef.  Indeed he appears to have thrived on
the challenge.  He worked the physically demanding hours as a chef with
remarkable energy and determination, striving to achieve excellence and wanting
to advance in his chosen profession.  Similar observations apply to his
personal life and recreational pursuits including being an avid motorcyclist,
and athletic person who enjoyed snowboarding, rollerblading, mountain biking,
and golfing; he pursued these activities he so enjoyed without any physical
limitations or discomfort.

[122]     After the accident, Mr. MacKenzie continued stoically and with
determination to pursue his career as a chef.  He returned to work after the
accident but by the end of April 2003 had to miss one and a half weeks of work
in an effort to allow his injuries to heal and the symptoms to subside.  Upon
returning to work, the symptoms did not subside and he had to work reduced
hours from May 25 to June 22, 2003.  After June 22, 2003 he had to return to
his full-fledged duties as Head Chef at the New Westminster Boathouse
restaurant, the reduced hours and lighter duties no longer being an option with
his employer.  He was able to continue as a chef in part through his passion
for his work and in part through the repeated therapies he engaged in through
physiotherapy, IMS injections and eventually massage therapy as well.  Of the
127 treatment and medical appointments he attended between April 11, 2003, (the
day after the accident) and November 25, 2005, (the date when he left his
position as a Head Chef at the White Rock Boathouse due to non-work related
injuries) only 17 visits were to doctors or for medical imaging.  The rest of
the visits were for treatment through physiotherapy and massage therapy.  The
treatments provided short periods of relief in alleviating the pain and
assisting in keeping him moving but did not eradicate the symptoms and pain.

[123]     From June 2003 until November 2005, Mr. MacKenzie continued to work
long hours as a chef and worked through the symptoms and pain he experienced on
a daily basis.  Unfortunately, his long hours, devotion to his career and the
physical demands of his profession did not permit him the opportunity to
properly heal and recover from his injuries.  Despite the ongoing symptoms and
pain, Mr. MacKenzie accepted the promotion to Head Chef of the White Rock
Boathouse in January 2005.  He continued to work long and physically demanding
hours at a location that exacted an even greater toll on him given the need to
repeatedly travel between the three floors of the restaurant.  Mr. MacKenzie
adapted as best he could and continued to work despite the pain he was
experiencing, I find he did this largely because of his passion for cooking,
the flexibility and relationship he had with the General Manager of the
restaurant, Mr. Lewis, and his continuing attendance at physiotherapy and
massage therapy.

[124]     I find Mr. MacKenzie left his position with the Boathouse, not
solely because he could not get along with the new General Manger, Doug Lau, as
the defence has intimated.  Rather, I accept Mr. MacKenzie’s evidence he left
because the pain became too intense and Mr. Lau’s unrealistic expectation he
work more time on-line and in the kitchen as well as the difficult physical
configuration of the premises, all combined to create an intolerable situation
for Mr. MacKenzie.  I find the primary reason for leaving the White Rock
Boathouse was Mr. MacKenzie could no longer carry out his duties because the
nature of his work aggravated the symptoms and continued to contribute to the
chronic pain he experiences in his neck, shoulders and back to such an extent
that it made it impossible for him to continue as a chef.

[125]     It is also clear from Mr. MacKenzie’s evidence, which I accept, his
preference would be to continue as a chef, a profession he has spent his life
pursuing and from which he derived a great deal of personal satisfaction and
enhanced self-worth, notwithstanding the intense physicality and demands the
position placed upon him.  However, it is also apparent from his evidence, and
indeed the totality of the evidence adduced, that he is no longer able to
continue in his career as a chef, given the chronic pain that has developed as
result of the injuries he sustained in the accident.  I was not left with the
impression that Mr. MacKenzie was malingering in any respect.

[126]     I further accept from the evidence Mr. MacKenzie must be cautious
about the nature of work he engages in now.  He cannot undertake any sort of
work that requires prolonged standing or that requires repeated bending,
twisting or lifting heavy weights.  I accept Mr. MacKenzie’s evidence he
continues to experience chronic pain which loads and builds through the work
week although his current position with Albion provides much more flexibility
in his physical positioning and much less physical stress on his neck,
shoulders and back.  Overall, his employment with Albion is a more suitable
arrangement for him than returning to the physically demanding position of
being a chef.

[127]     It is also clear from the evidence Mr. MacKenzie would prefer to be
able to resume the intense recreational and personal pursuits he engaged in
prior to the accident.  Thus far he has not been able to return to the more
demanding recreational pursuits of snowboarding, mountain biking, or riding a
motorcycle.  He has only returned to golfing in the past year but only on a
limited, modified and less intense basis than prior to the accident.

[128]     The
evidence of Mr. Smith confirms Mr. MacKenzie’s evidence, and the evidence of
others, that Mr. MacKenzie had no difficulties with his back or neck prior to
the accident and that he was fully capable of riding a motorcycle, moving gear
and accessories at the Richmond Motorsports shop and assisting in readying
materials and accessories for transportation to the annual motorcycle show. 
Mr. Smith’s evidence also confirms that since the accident Mr. MacKenzie has
been unable to continue to pursue his passion for riding motorcycles.

[129]     The evidence of Mr. MacKenzie’s sister, which I accept, was
compelling from the perspective of the changes she has observed in her brother
since the accident.  Ms. Mackenzie substantiated her brother’s evidence as to
his inability to engage in the physical activity of cooking for their family at
the level and intensity he did prior to the accident.  Ms. MacKenzie’s evidence
established that prior to the accident Mr. MacKenzie was at the centre of the
activities around meal preparation for all manner of family gatherings.  Since
the accident, however, Mr. MacKenzie’s ability to engage in this activity has
diminished considerably.  He also is no longer able to roughhouse with his
nieces and nephews due to his physical limitations as a result of the accident.

[130]     For these reasons I accept the evidence of Mr. MacKenzie and the
other witnesses called on his behalf to establish he was pain and symptom free
prior to the accident, whereas after the accident he has had the physical
difficulties he described and the other witnesses have observed.  This
evidence, in combination with the evidence and reports of Dr. Owers, Dr.
Greenberg and particularly Dr. Hunt, establishes the cause of the Mr.
MacKenzie’s injuries, discomfort and continuing chronic pain, giving rise to the
ongoing physical limitations thereafter, was the accident.

[131]     The evidence also establishes, and I find, Mr. MacKenzie continues
to experience chronic pain and difficulties, primarily with his lower back but
also intermittently with his neck and shoulders, and is still fairly limited in
terms of the kind and duration of physical activities, recreational pursuits
and employment activities he is able to engage in at the present time. 
Moreover, he is significantly limited in his stamina and ability to perform the
numerous physical tasks associated with the demanding position of a chef.  He
is unable to engage in the repetitive tasks of bending, lifting, moving, or
carrying heavy objects and is unable to remain on his feet for prolonged
periods of time; all of which are tasks inextricably tied to the position of
being a chef.  Mr. MacKenzie was able to cope with the ongoing chronic pain and
continue in his position as a chef with the Boathouse until November 2005
through determination, stoicism and reliance upon repeated physiotherapy
sessions and then finally adding in massage therapy in the summer of 2005.  Mr.
MacKenzie finally had to leave his work as Head Chef with the White Rock
Boathouse restaurant because the chronic pain from his injuries was exacerbated
further by the increasing and unrealistic expectations of a new manager and the
physical demands of the restaurant configuration.

2.     Medical
and Expert Evidence adduced on behalf of the Plaintiff

[132]     Exhibit #1 filed in this trial documents all the medical and treatment
appointments Mr. MacKenzie attended between April 11, 2003, the day after the
accident, and  December 18, 2009, a month before the trial commenced.  Of the
286 appointments documented, 45 appointments were for attendances to his family
physician, Dr. Owers, or other medical experts including Dr. David Hunt, a pain
consultant and Dr. John Oliver, the orthopaedic surgeon who conducted an IME. 
The remaining 241 appointments, which occurred at least once a month and quite
often more frequently, were for physiotherapy and massage therapy treatments.

a)     The
Reports and Evidence of the Plaintiff’s Family Physicians

[133]     Dr. David Owers first saw Mr. MacKenzie on April 25, 2003, and
supervised his treatment until he left general practice at the end of July
2008.  Thereafter, Dr. Ronald Greenberg became the plaintiff’s family
physician.

[134]     Dr. Owers prepared two medical-legal reports.  The first, dated June
23, 2005, was marked Ex. #13, and the second, dated May 26, 2009, was marked
Ex. #14.  These two reports outline the history of visits and presenting
symptoms Mr. MacKenzie exhibited throughout his course of treatment by Dr.
Owers.  Mr. MacKenzie’s main complaint was of pain in his mid to low back and
in the right side of his neck.  Physical examination revealed tenderness in the
right para-cervical area, the right trapezius area and bilaterally in the lower
rhomboids and the upper para-lumbar muscles.  An initial diagnosis of soft
tissue injuries to the neck and mid back was made and physiotherapy and
analgesics were prescribed.

[135]     Dr. Owers noted in his first medical report Mr. MacKenzie continued
to attend at his office regularly, and with each attendance continued to
complain of mid and lower back pain into January 2005.  These complaints were
objectively confirmed by noted tenderness upon physical examination.  Although
Dr. Owers included in this first report an impression of de-conditioning, he
then noted this was unlikely as Mr. MacKenzie was highly motivated.  The course
of treatment through January 2005 was to recommend continued physiotherapy and
a prescription for Percocet was given.  By June 23, 2005, Dr. Owers was of the
opinion, despite Mr. MacKenzie’s efforts and being highly motivated, Mr.
MacKenzie was likely to have his back condition continue, and opined Mr.
MacKenzie had developed chronic pain.  Dr. Owers did not have any
recommendations for other types of intervention.

[136]     Dr. Owers’ second medical-legal report dated May 26, 2009, Ex. #14,
outlines further attendances by the plaintiff and a referral to Dr. O’Connor, a
physiatrist, who recommended in January 2006 a focus on core strength
conditioning.  Dr. Owers noted that over the years he supervised Mr.
MacKenzie’s treatment the main complaint was mid and low back pain with
intermittent neck pain.  Notwithstanding repeated IMS therapy with the
physiotherapist, the pain continued.  Dr. Owers concluded that due to the
ongoing nature of Mr. MacKenzie’s symptoms, he would not be able to return to
heavy work or employment requiring prolonged periods of standing.  Although Mr.
MacKenzie continued to experience residual pain in his new employment at Albion
Fisheries, Dr. Owers noted he was able to cope due to greater freedom and
flexibility in this new, and less physically demanding, position.

[137]     Dr. Owers was produced for cross-examination and agreed he
recommended Mr. MacKenzie work on his core strength, a topic not as widely
known and addressed in 2003 as it is today.  However, concentration on
strengthening the core was to be at the discretion of the physiotherapist.  Dr.
Owers agreed decreased core strength can sometimes be associated with back
pain, but not always.  Dr. Owers disagreed his first report suggested Mr.
MacKenzie should be “weaned off” physiotherapy by February 2004.  Dr. Owers
felt a personal trainer would provide better guidance to Mr. MacKenzie but was
not suggesting he should stop physiotherapy.

[138]     He disagreed with Dr. O’Connor’s January 2006 recommendations as to
aerobic conditioning and exercises for Mr. MacKenzie, stating it was
inappropriate and a high level of expectation for someone involved in a busy
career.

[139]     Although Dr. Owers recommended Mr. MacKenzie undertake light duties
as a chef in May 2003 and provided a note for that, he never recommended Mr.
MacKenzie stop his employment.  Once he gained a better appreciation of the
nature of being a chef and the heavy work it entailed, Dr. Owers did not think
it was necessary for Mr. MacKenzie to stop working. He did note Mr. MacKenzie
may need to discontinue such work if it was counter-productive to his
rehabilitation efforts.

[140]     Dr.
Ronald Greenberg became Mr. MacKenzie’s physician in October 2008.  His
medical-legal report dated May 25, 2009, was marked Ex. #3.  Dr. Greenberg was
not required for cross examination.  Dr. Greenberg saw Mr. MacKenzie on seven
occasions between October 16, 2008, and April 30, 2009.  Based on his review of
the medical documentation and his observation and examination of Mr. MacKenzie
as well as the information Mr. MacKenzie provided, Dr. Greenberg noted Mr.
MacKenzie had experienced headaches and back pain from the time of the accident
until the time of his report.  Although there was some improvement in the level
of pain there had been no resolution of it.  Dr. Greenberg noted Mr. MacKenzie
required regular physiotherapy, massage therapy or acupuncture to prevent an
increase in pain.

[141]     Based
on his review of the file and his assessment of Mr. MacKenzie, Dr. Greenberg
was of the opinion Mr. MacKenzie likely required one of the above physical
therapies for an extended period.  He also opined “it is possible that a
chronic pain or a chronic myofascial pain syndrome may develop due to the
length of time he has had pain.”

b)     The Report
and Evidence of Dr. David Hunt – the Plaintiff’s Pain Consultant

[142]     The main expert witness for Mr. MacKenzie was Dr. David Hunt, a
medical doctor with 40 years experience as a specialist in emergency medicine
and a subspecialty in the treatment of complex and chronic pain disorders.  Dr.
Hunt is currently the assistant director of the Neuromodulation Program
at the Pain Center at St. Paul’s Hospital in Vancouver and has been a pain
consultant to the Pain Center since the year 2000.  Dr. Hunt is also a pain
consultant to the Complex Pain Service at Vancouver General Hospital.  Between
1994 and 1999 Dr. Hunt was Medical Director of Interdisciplinary Pain Programs
at the Workers’ Compensation Board (WCB), having previously been Program
Coordinator of WCB’s Pace Pain Program and Back Evaluation Program from 1992
until 1999.  As his detailed curriculum vitae established, and his
evidence confirmed, Dr. Hunt is clearly a leading expert in the emerging field
of Pain Medicine.

[143]     Dr. Hunt provided a very detailed medical-legal report dated
November 4, 2009, where he summarized the extensive treatment history
Mr. MacKenzie engaged in after the accident, reviewed and summarized all the
medial reports prepared on Mr. MacKenzie and conducted a comprehensive medical
assessment of Mr. MacKenzie for a total of four hours on October 8 and 14,
2009.

[144]     On the basis of his two lengthy assessments of Mr. MacKenzie, as
well as his detailed review of Mr. MacKenzie’s medical history, clinical
records and the other consultant and expert reports prepared in this case
(including the expert report of Dr. Oliver, who conducted the IME on Mr. MacKenzie),
Dr. Hunt reached the following diagnoses of Mr. Mackenzie’s condition:

a.    
Mechanical low back pain secondary to chronic
myofascial pain syndrome.

b.    
Whiplash Associated Disorder (WAD) with
intermittent cervicogenic headaches and associated myofascial pain syndrome.

c.    
Mild intermittent mood (dysphoria) and mild to
moderate sleep disorder secondary to a chronic pain condition.

d.    
Obesity.

[145]     Dr. Hunt
detailed his findings and explained the basis for them in his extensive
medical-legal report.  His report also documents a number of objective findings
from the assessment that assisted in the formulation of his opinion and
conclusions.

[146]     Dr. Hunt
opined Mr. MacKenzie’s cervical, thoracic and lumbosacral spine were exposed to
significant acceleration and deceleration forces at the time of the accident. 
Within hours of the accident, Mr. MacKenzie developed pain in his neck, mid
back, lower back, left shoulder and left elbow as documented by Dr. James Lam
on April 11, 2003, and Dr. David Owers on April 25, 2003.

[147]     Dr. Hunt
opined Mr. MacKenzie developed mechanical low back pain caused by moderate
myofascial pain syndrome involving the lower lumbar spine (the L4-5 and L5-S1
segments) with symptoms reaching across his lower back, upper buttocks and into
the lateral inguinal region (lower lateral region of the abdomen on either side
of the pubic region).

[148]     Notwithstanding
early and ongoing treatment and reactivation therapy, Mr. MacKenzie’s pain
symptoms continue to the present day.  In Dr. Hunt’s opinion, Mr. MacKenzie has
repeatedly and persistently demonstrated diminished tolerances for a variety of
activities.  Moreover, Dr. Hunt found Mr. MacKenzie experienced escalations in
musculoskeletal pain in his lower back whenever he exceeds his physical
tolerances for lumbar loading. This ongoing musculoskeletal dysfunction was
documented by objective findings from other health care professionals treating
Mr. MacKenzie.

[149]     When Mr.
MacKenzie’s symptoms and condition flare in his lower back, he gets a fairly
broad referral pattern of pain involving radiation across the lower back
wrapping around towards the inguinal region as well as the upper buttocks.  Mr.
MacKenzie’s presentation contained elements of centralization of the chronic
pain condition indicative of changes in the central nervous system.

[150]     Dr. Hunt
was of the opinion that as a consequence of the force applied to Mr.
MacKenzie’s upper spine in the accident, Mr. MacKenzie developed Whiplash
Associated Disorder of the cervical spine.  The condition includes his
posterior neck, upper shoulder girdles and interscapular region.  Evidence of
persistent restricted range of motion of the cervical spine, hypertoned muscles
and tenderness in these regions was documented by the various treatment
providers and observed by Dr. Hunt during his comprehensive assessment of Mr.
MacKenzie.

[151]     Mr.
MacKenzie’s symptoms of pain and muscle spasm, which he exhibits in his neck
and shoulder girdles, upper back, and lower back have consistently flared when
he is exposed to physical activity which exceeds his physical tolerances,
particularly in combination with high levels of stress and time pressures.

[152]     Dr. Hunt
also outlined that as a result of a combination of anxiety and frustration with
incapacitating pain, prolonged recovery, loss of a long term relationship, loss
of his position in the motorcycle shop and being unable to continue with riding
a motorcycle, Mr. MacKenzie experienced major symptoms of depression early in
his recovery but this had dissipated and was now more a mild intermittent mood
disorder as a result of his chronic pain condition.  Mr. MacKenzie continues to
experience mild to moderate sleep disturbance primarily due to his symptoms of
chronic pain.  Dr. Hunt was of the opinion Mr. MacKenzie was coping remarkably
well with his persistent pain problems, employing a number of passive and
active measures to reduce, as well as distract him from, the pain.  Counselling
was recommended if a deterioration in mood re-occurred.

[153]     Dr. Hunt
specifically addressed the state of Mr. MacKenzie’s conditioning, responding to
Dr. Oliver’s IME report of April 11, 2008, and his opinion the symptoms of soft
tissue injuries Mr. MacKenzie sustained in the motor vehicle accident were
aggravated by general de-conditioning and his current symptoms and conditions
were due to the effects of de-conditioning.  Dr. Hunt specifically disagreed
with Dr. Oliver that Mr. MacKenzie was de-conditioned at the time of the
accident.  He noted Mr. MacKenzie became somewhat de-conditioned initially
following the injuries sustained in the accident, but had since engaged in a
number of paced reactivation programs and endeavoured to stay active.

[154]     Dr. Hunt
observed that although Mr. MacKenzie is a large man, he engaged in a number of
physical activities and had a physically demanding job as a chef in a busy
restaurant working long hours prior to the accident.  Dr. Hunt noted that in
order to be able to carry out this type of work for 10 to 16 hour shifts or
engage in the winter sports activities that he did, Mr. MacKenzie had to be
relatively well conditioned.

[155]     Dr. Hunt
commended Mr. MacKenzie for his prompt return to work as a chef despite ongoing
symptoms of neck, shoulder mid-back and low-back pain and muscle spasms
following the accident.  He also commended Mr. MacKenzie for later seeking and
securing less physically demanding employment with Albion as contrasted with
his previous physically demanding work as the Head Chef in a busy restaurant. 
Dr. Hunt noted that despite these changes, time pressures, stress and
accumulated lumbar loading through the work week continue to create inordinate
pain and muscle spasms in all areas of Mr. MacKenzie’s vulnerability: neck,
shoulder girdle, interscapular region and lower back, particular on the fourth
and fifth days of his work week.

[156]     It is Dr.
Hunt’s opinion Mr. MacKenzie will not be able to sustain his current work in
the long term unless there is some job modification and he receives appropriate
interdisciplinary therapy to help dampen sympathetic nervous system arousal
associated with the anxiety of time pressures and stress which are driving his
myofascial pain syndrome.  Simply carrying on in his current position without
alteration from the present circumstances will, in Dr. Hunt’s opinion,
inevitably lead to physical breakdown, exhaustion and deteriorating work
performance.

[157]     In Dr.
Hunt’s opinion, because Mr. MacKenzie’s neck, shoulder girdle, interscapular
and low back conditions have not improved, and in fact have deteriorated in the
years following the accident despite direct intensive reactivation and passive
therapy by several different health practitioners, a number of restrictions for
future work activities were recommended in order to keep Mr. MacKenzie
functioning in the work force.  Those restrictions outlined in his report, and
not challenged in cross-examination, recommend a permanent restriction on
activities that impact on Mr. MacKenzie’s lower back condition including: (i)
the category of work he can undertake (sedentary to light); (ii) avoiding
repetitive bending, twisting, stooping and movement in and out of awkward
positions; (iii) avoiding one time lifting of weights greater than 30 lbs and
repetitive lifting of weights greater than 15 to 20 lbs.  Movement restrictions
were also outlined for activities impacting on Mr. MacKenzie’s neck, shoulder
girdles and interscapular region, including avoiding repetitive work with his
arms above mid chest level.

[158]     Dr. Hunt
provided four specific recommendations with respect to Mr. MacKenzie’s ongoing
treatment which, in his opinion, are medically necessary and reasonable.  They
are as follows:

a.     Psychological
counselling with a psychologist experienced in chronic pain treatment for a
minimum of 18 sessions in the first year and six further reinforcing sessions
in the second year so Mr. MacKenzie can become skilled in developing various
techniques for stress management to control escalating pain.

b.     Consultation
with an occupational therapist to review his work and home stations so
ergonomically correct set ups and equipment are provided to ensure appropriate
lumbar supports and adjustments to minimize physical stress on the neck, upper
back and shoulder girdles.

c.     Physiotherapy
and massage therapy every two to three weeks on an ongoing basis to manage the
myofascial pain syndrome flare-ups and to keep Mr. MacKenzie moving, engaging
in work and maintaining function.

d.     Treatment
by a physiatrist with a subspecialty in chronic pain.  The course of treatment
should include a trial of trigger point injections at Mr. MacKenzie’s multiple
sites of myofascial pain and possible Botox injections to dampen muscle
reactivity and spasm and facilitate retraining of the muscles.

[159]     Insofar as
recreational and work related activities are concerned, Dr. Hunt was of the
opinion Mr. MacKenzie should only engage in activities within his physical
tolerances and so the recommended physical restrictions outlined in his report,
some of which are enumerated above, must be followed.

[160]     Dr. Hunt’s
prognosis is it is most unlikely Mr. MacKenzie will ever fully recover normal
function with the conditions diagnosed given the duration of the continuing
symptoms (more than six and a half years at the time of the assessment) since
Mr. MacKenzie sustained his injuries in the accident coupled with the fact that
he engaged in intense directed reactivation programs and treatment during those
years.  In Dr. Hunt’s opinion, Mr. MacKenzie has suffered a permanent partial
disability from the injuries to the cervical region, both shoulder girdles, as
well as mid and lower back areas in the accident.  Prognosis for significant
improvement from his assessed state in October 2009 was stated as unlikely. 
While deterioration in condition might occur with aging and normal
degeneration, Dr. Hunt was not able to make an accurate projection on this
point.

[161]     Dr. Hunt addressed
the issue of causation in his report and was of the opinion Mr. MacKenzie, who
presented as pain free, emotionally and psychologically stable, physically
active and fully employed as a chef in a busy restaurant before the accident of
April 10, 2003, sustained the soft tissue injuries in the accident which have
caused all of the medical conditions, limitations and restrictions Mr.
MacKenzie has exhibited and experienced since the accident.  Moreover, Dr. Hunt
is firmly of the opinion the issue of de-conditioning is not the cause of Mr.
MacKenzie’s medical conditions, rather de-conditioning came about as a result
of the injuries sustained in the accident.

[162]     In his
evidence, Dr. Hunt also addressed the issue of the video surveillance of Mr.
MacKenzie.  On October 30, 2009, Mr. MacKenzie was filmed coming out of his
place of employment carrying some Styrofoam boxes and he was also filmed on two
occasions (November 8 and December 5, 2009) at a golf facility.  Nothing in the
video surveillance caused Dr. Hunt to change his clinical impression of Mr.
MacKenzie’s condition, nor was there anything in the videos to contradict his
clinical impression.  Dr. Hunt testified the fact Mr. MacKenzie was carrying
three or four Styrofoam boxes which may have weighed 20 pounds, coupled with
the manner of how he carried them, was consistent with the capabilities Dr.
Hunt observed of Mr. MacKenzie when he conducted his assessments.  Dr. Hunt
noted the video showed Mr. MacKenzie walking slowly and holding the packages
with the weight equally distributed to the side as opposed to carrying them out
in front and loading his back.  He lowered the packages to the ground, opened
the trunk and then placed the packages in the trunk one by one.

[163]     A further
video clip depicting Mr. MacKenzie standing near a wall in a Starbucks Coffee
Shop showed Mr. MacKenzie to be shifting back and forth, a stance consistent
with someone experiencing lower back and leg pain.  Dr. Hunt also noticed in
this clip Mr. MacKenzie appeared to have a slightly bent forward to flexed
forward posture, a position he assumes when experiencing pain flares from his
injuries.

[164]     With
respect to the observation of the video footage at the golf facility, nothing
in the video contradicted Dr. Hunt’s opinion.  Mr. MacKenzie was observed to
have a friend assisting him with placing the golf bag on his shoulder close to
his body and walking slowly.

[165]     Dr. Hunt
watched the video surveillance of Mr. MacKenzie’s attendance at a driving range
in November and December 2009 and observed that Mr. MacKenzie’s golf swing was
extremely abbreviated and modified to allow him to hit the ball, albeit not
very well, without aggravating his back.  After taking two or three swings, Mr.
MacKenzie would take a break, move around, and wipe his golf club.  Nothing in
the video clips Dr. Hunt observed appeared inconsistent with his assessment and
diagnosis of Mr. MacKenzie.  Dr. Hunt endorsed Mr. MacKenzie’s efforts at
returning to golf so long as he did it within the physical tolerances and
limitations he has as a result of the injuries and ongoing pain symptoms.

[166]     Upon
reviewing the various video surveillance clips, Dr. Hunt concluded Mr.
MacKenzie’s posture and movements were not inconsistent with the opinion he had
formed in his assessment.  He observed Mr. MacKenzie to be taking limiting
steps on how to handle items and lift them and that he exhibited symptoms and
postures consistent with the pain he claims he experiences.  Dr. Hunt did not
observe anything in any of the video clips that was inconsistent with his
diagnosis, prognosis or recommendations for Mr. MacKenzie and did not cause him
to change his assessment or opinion.

[167]     Dr. Hunt
was not significantly challenged in cross-examination as to the contents of his
report, his medical diagnosis, prognosis and recommendations.  Rather,
cross-examination focussed on the issue of de-conditioning and obesity being
the factors causing the continuing pain symptoms Mr. MacKenzie experiences to
the present day.

[168]     Dr. Hunt
agreed that people who have no core strength will often experience aggravation
of pain.  He agreed with Dr. O’Connor’s observation of January 6, 2006, that a
progressive aerobic conditioning program aimed at walking four to five times
per week to increase Mr. MacKenzie’s cardiovascular training range would be
optimal with a goal of eventually engaging in 30 to 40 minutes of activity four
times per week with a heart rate at a minimum of 140 beats per minute.  Dr.
Hunt agreed with Dr. O’Connor’s observation that Mr. MacKenzie should also
combine cardiovascular training with a core stability program to make sure he
uses his core muscles when he has to bend, twist or lift.  However, it was Dr.
Hunt’s assessment Mr. MacKenzie had done most everything Dr. O’Connor directed
him to do and continued to work hard after the recommendations from January
2006.  Despite these steps, Mr. MacKenzie still continued to experience
significant pain and muscle spasms.

[169]     Dr. Hunt
acknowledged in cross-examination core strength can be lost or diminished in
individuals with back problems.  By that he meant such individuals often do not
have the necessary abdominal muscle support and therefore will experience more
symptoms when these muscles are not able to support the back and act like a
girdle.  He agreed poor core strength is something that can be associated with
back pain but is not causative of back pain per se.  Rather, back pain
will exist if there are other pain generators already present.  He agreed that
for some patients, depending on the cause of the pain, an increase in core
strength can decrease back pain.

[170]     When it
was suggested to him there was some evidence of poor core strength with Mr.
MacKenzie, Dr. Hunt strongly disagreed and testified he found quite remarkable
core strength in Mr. MacKenzie relative to other patients in similar
circumstances.  Dr. Hunt pointed to the provocative tests he had the plaintiff
perform, including a bilateral active straight leg raise holding his feet 10
inches off the examining table.  Mr. MacKenzie was able to do so for almost
five seconds.  Dr. Hunt noted in his report Mr. MacKenzie experienced
mechanical low back pain with this manoeuvre and stated that there was some
evidence of abdominal muscle weakness with some mild shaking of the abdominal
musculature.

[171]     Dr. Hunt
testified the ability of Mr. MacKenzie to perform this test occurs in only
approximately 1 in 50 patients with similar symptoms.  This result indicated to
Dr. Hunt that Mr. MacKenzie had worked fairly significantly to improve his core
strength and the fact he was able to do this test was remarkable given his
situation.  Dr. Hunt conceded Mr. MacKenzie could perhaps do more, but
cautioned that patients with chronic pain must pace their activities and cannot
do many provocative exercises like normal people.  Dr. Hunt indicated Mr.
MacKenzie had been pacing his program and in fact the records indicated to him
Mr. MacKenzie had been working hard through years of injury, and in fact worked
harder than many patients he assesses and treats.

[172]     Dr. Hunt
agreed Mr. MacKenzie is capable of cardiovascular exercise but testified Mr.
MacKenzie was in good cardiovascular health, as indicated from the results of
the cardiac stress test he administered in his assessments.  This also
indicated to Dr. Hunt Mr. MacKenzie had worked hard and could not have achieved
the 90% of normal result in his tests administered if he was de-conditioned.

[173]     Dr. Hunt
agreed that one of the objective findings from his examination was Mr.
MacKenzie was diagnosed as obese and agreed obesity can be associated with back
pain and can aggravate pain generators or a chronic condition.  However, he did
not agree obesity was causative of back pain.  He also agreed weight loss can
alleviate symptoms of back pain but strengthening core muscles is the overall
best situation.  While weight loss can assist, and certainly is better for the
overall health of Mr. MacKenzie, in and of itself obesity did not equate to the
back pain he experiences.

c)     The
Reports of the Plaintiff’s Physiotherapists

[174]     Over
the seven years following the accident, Mr. MacKenzie has attended for
physiotherapy treatment almost continuously with only a couple of
interruptions.  He started physiotherapy treatment with David Moffat on May 11,
2003, and continued with him through to the end of 2003.  Mr. Moffat was not
required for cross-examination but his report of January 20, 2006, was marked
as Ex. #2.

[175]     Mr.
Moffat first assessed Mr. MacKenzie in relation to the accident on May 11,
2003.  Mr. Moffat’s initial objective assessment of Mr. MacKenzie’s condition
was derived through physical testing and revealed a 51% reduction in cervical
flexion and other cervical movements were reduced by 16% to 22%.  Shoulder
flexion in standing was limited by 30%, isometric contraction of the medial
deltoid and upper trapezius was painful.

[176]     Insofar
as lower extremity function and range of motion was concerned, Mr. MacKenzie
had very poor bent knee hip flexion, and straight leg raises were very poor. 
He was unable to complete an abdominal curl due to pain and instability of the
neck.  Palpation of the right para-vertebrals of the lumbar and cervical spine
elicited a pain response.

[177]     Mr.
Moffat noted Mr. MacKenzie was making slow but steady progress in his
customized rehabilitation program, but concluded his degree of progress was
compromised by his work schedule and his restricted ability to fully optimize
the rehabilitation program between April 2003 and December 10, 2003.  Mr.
Moffat noted Mr. MacKenzie was significantly compromised in his cervical range
of motion in terms of flexion as well as in shoulder strength, hip flexion and
abdominal curls were very limited because of neck pain.  Mr. Moffat opined it
was probable Mr. MacKenzie would experience some persistent limitations.

[178]     Mr.
MacKenzie switched physiotherapists at the end of 2003 and started to see Mina
Kavia for physiotherapy and IMS injections in July 2004.  Ms. Kavia was not
required for cross-examination but her report of February 2006 was marked Ex.
#6 and her report of August 26, 2009, was marked Ex. #7.

[179]     On
his initial visit, Ms. Kavia conducted an assessment and obtained a medical
history from Mr. MacKenzie.  The three main areas of pain and complaint were
reported as follows:

·      
Left side of the neck being worse than the right.

·      
Between the shoulder blades at the thoracic spine bilaterally.

·      
Low back, left being worse than the right.

[180]     Objective
examination at the initial assessment showed a 75% range of motion through the
cervical spine in all planes of movement: flexion, extension, bilateral side
flexion and bilateral rotation.

[181]     In
addition to a limited range of motion in the cervical spine, Ms. Kavia noted a
50% limitation in flexion and 25% limitation in extension and rotation in side
flexion for the thoracic spine.  Range of motion in the lumbar spine was
limited by 25% in all planes of movement.  In addition to a restricted range of
motion, Mr. MacKenzie’s muscle tone was noted to be “hypertonic” from the
lumbar spine to the thoracic spine and other limitations were noted.  By the
time of Ms. Kavia’s first report in February 2006, Mr. MacKenzie had attended
for physiotherapy treatment first with the Maple Ridge Physiotherapy Clinic and
then Seva Physiotherapy for approximately 13 visits in 2003 commencing October
28. Mr. MacKenzie attended for 22 treatments in 2004; 34 treatments in 2005 and
4 treatments in January and February of 2006.

[182]     A number
of treatments were administered over these visits, consisting of mobilization,
manipulation, acupuncture, IMS injections and a series of muscle retraining
exercises from the core stabilizer of the lumbar region to the cervical spine
stabilizing system of muscles.  A home cardiovascular endurance and
strengthening program was also prescribed by Ms. Kavia, but Mr. MacKenzie had
difficulty with maintaining an exercise program while working long shifts as a
chef.

[183]     The
physiotherapy regime administered by Ms. Kavia assisted in pain reduction and
pain improvement and improved the range of motion in Mr. MacKenzie’s lumbar and
cervical spine. However, the thoracic spine continued to present difficulty.

[184]     It was Ms.
Kavia’s opinion at the time of her first report that for there to be a further
improvement in functioning it was necessary for Mr. MacKenzie to maintain an
ongoing regime of an exercise program three times per week along with biweekly
physiotherapy.  At the time of Ms. Kavia’s first report Mr. MacKenzie had left
his position as a chef and had started working out with a personal trainer.

[185]     Ms.
Kavia’s opinion clearly supports the necessity of a regular exercise program
three times per week coupled with biweekly physiotherapy.  She was supportive
of the retraining process Mr. MacKenzie was undertaking in early 2006 as at it
would allow him time to follow through with his exercise regime and also permit
him an opportunity to find an occupation more suitable for his function and to
manage his pain.

[186]     Ms.
Kavia’s second report, dated August 26, 2009, outlines that IMS injections
became the preferred treatment intervention for Mr. MacKenzie’s neck, mid back,
low back and hips due to his presentation of myofascial pain.  Among the
features Mr. MacKenzie continued to present in his physiotherapy treatment was
a distribution of taut bands of muscles along the cervical spine, thoracic
spine and lumbar spine.  He continued to have a limited range of motion in his
spine and also displayed continued postural difficulties.

[187]     Ms.
Kavia’s prognosis was Mr. MacKenzie would continue to have shortened muscle
bands, but has been able to manage at his new occupation for two week periods
before requiring a further IMS injection.  Ms. Kavia expressed the opinion that
since myofascial pain had set in for Mr. MacKenzie, it is likely he will need
to continue with IMS injections as well as a regular exercise program for
weight loss in order to manage his pain.  While the long term consequences for
myofascial pain syndrome could result in an inability to continue to work, Ms.
Kavia stressed the importance of ongoing IMS treatments and cardiovascular
exercise to assist Mr. MacKenzie in maintaining his employment in the face of
myofascial pain in order to avoid the alternative of a disability where he is
unable to work.

d)     The Report
of the Plaintiff’s Massage Therapist

[188]     Susan Woo, a RMT, provided 12 massage treatments to the plaintiff
between July 27, 2005 and February 21, 2006. Ms. Woo was not required
for cross-examination but her report of March 13, 2006, was marked Ex. #5.  In
addition to the 12 massage therapy treatments outlined in her report, Ex. #1
establishes Mr. MacKenzie returned to massage therapy with Ms. Woo in October
2007 after he started working at Albion, and had an additional 47 massage
therapy treatments between October 30, 2007, and December 18, 2009.

[189]     Upon
initial examination of Mr. MacKenzie, Ms. Woo noted constant pain in the entire
back area, particularly through the intrascapular and lumbar regions. 
Examination of Mr. MacKenzie’s back revealed very adhered and fibrous tissues
due to chronically hypertoned erector spinae muscles.  Although Mr. MacKenzie
complained the left side of his back was more bothersome than the right, there
was tightness bilaterally.  Mr. MacKenzie also complained of pain in the upper
portion of his right posterior leg and daily temporal headaches.

[190]     The
massage therapy treatments Ms. Woo provided to Mr. MacKenzie covered the lower,
mid and upper back, the pectorals, as well as the posterior and anterior
cervical muscles. Part of the purpose of the massage
treatments was to ease the pain and discomfort the plaintiff experienced from
the IMS injections provided by Ms. Kavia.

[191]     Over
the course of the treatments, Mr. MacKenzie made a modest improvement in his
condition with decreased intensity of back pain and headaches.  At the time of
her report Ms. Woo noted Mr. MacKenzie’s symptoms included the following:

·      
On palpation the entire gluteal musculature was congested,
fibrous and tender at the iliac crest attachment at its apex and lateral
borders;

·      
Lower back still holds a lot of tension and stiffness;

·      
Erector spinae muscles bilaterally remained very taut and
hypertoned and palpably thicker on the left; and,

·      
Upper back tension and pain was located mainly between the
scapulae.

[192]     Ms.
Woo stated the potential for full recovery from the accident would have
significantly increased if Mr. MacKenzie had limited his work hours as a chef
during the beginning stages of his rehabilitation.  His remaining in the
physically and psychologically demanding job of a chef throughout most of his
recovery period was, in Ms. Woo’s opinion, of great hindrance.  Ms. Woo felt it
was possible for Mr. MacKenzie to make a near full recovery if he continued
with his massage and physiotherapy treatments without interruption.  However
due to the inconsistency in the visits, she was unable to maintain satisfactory
results throughout Mr. MacKenzie’s treatments up to March 2006.

[193]     Ms.
Woo recommended regular and continued massage therapy treatment for as long as
necessary to alleviate the pain symptoms Mr. MacKenzie continues to experience,
opining, at the very minimum, weekly treatments should be undertaken.

e)     Findings
in Relation to the Plaintiff’s Medical and Expert Evidence

[194]     I
found Dr. Hunt, a leading expert in the subspecialty of Pain Medicine, was
extremely thorough and very careful both in his written opinion and in his
evidence before the court.  Dr. Owers, an experienced physician practicing in
family medicine until 2008, was also thorough and careful in his written
opinions and in his evidence.  I found both doctors testified in an objective
and professional manner.  Neither doctor was shaken in cross-examination as to
their overall opinion or assessment of Mr. MacKenzie’s current condition, the
cause of his condition or the prognosis for his future.

[195]     Dr.
Owers’ report and evidence supports a finding Mr. MacKenzie sustained moderate
soft tissue injuries to his neck, shoulders, mid back and lower back in the
accident.  His evidence supports a finding that Mr. MacKenzie was, as of the
trial date, nearly seven years post accident, still regularly exhibiting
chronic pain symptoms, primarily in his mid and lower back, but also in his
neck, such that he has yet to completely recover from the accident.  Indeed, as
Dr. Owers noted, Mr. MacKenzie’s condition and the continuing symptoms he
experiences as a result of the injuries sustained in the accident have
developed into a chronic pain situation.

[196]     Dr.
Hunt’s extensive report and evidence supports the finding Mr. MacKenzie’s
current condition is one of chronic pain which has developed as a result of the
injuries sustained in the accident.  I accept Dr. Hunt’s conclusion and
opinion, despite efforts through various treatment modalities, Mr. MacKenzie
continues to suffer chronic pain as a result of the injuries sustained in the accident
and as a consequence has suffered a permanent partial disability which is
unlikely to improve significantly.

[197]     On
the evidence of both Dr. Owers and Dr. Hunt, as supplemented by the
observations and opinions of Dr. Greenberg, Ms. Kavia and Ms. Woo, it is clear,
despite numerous interventions and treatment modalities over the years, as well
as considerable motivation and effort by Mr. MacKenzie, he continues to
experience chronic pain in his neck, shoulders and back as a result of the
injuries he sustained in the accident.  The totality of this evidence, in
particular the opinion of Dr. Hunt, which I accept, supports the conclusion Mr.
MacKenzie has developed chronic myofascial pain syndrome from these injuries. 
The injuries and their ongoing symptoms make it all but impossible for Mr.
MacKenzie to engage in physically demanding or heavy workload positions such as
that required by his previous profession as a chef.

[198]     The prognosis for a full recovery from these injuries is not at all
positive.  Indeed, Dr. Owers and Dr. Hunt are both of the opinion Mr.
MacKenzie’s chronic pain will likely continue into the future without
significant improvement.  Dr. Hunt describes Mr. MacKenzie’s condition, and I
accept his opinion on this point, as a permanent partial disability that will
require Mr. MacKenzie restrict his employment activities to the sedentary or
light work categories.

[199]     In
addition, this permanent partial disability and the associated restrictions
from the injuries Mr. MacKenzie sustained in the accident have adversely
affected all facets of Mr. MacKenzie’s working and personal life.  As a
consequence of the continuing chronic pain from his injuries he can no longer
enjoy many of the physical activities he was involved in before the accident
and has been advised to avoid physical activities that are aggravating to his
lumbar spine and neck.

[200]     From
the evidence and reports of the medical practitioners and treatment providers
adduced on behalf of the plaintiff, it is apparent management, but not
necessarily eradication, of Mr. MacKenzie’s chronic pain symptoms will be
achieved through a continuing exercise regime directed at improving and
maintaining core stability and cardiovascular condition, which will assist in
reduction of his weight.  Further assisting in the management of the chronic
pain symptoms will be resort to a variety of other treatment modalities
including various physiotherapy techniques, massage therapy, consultation with
a physiatrist and a psychologist, both with expertise in managing chronic pain,
and consultation with an occupational therapist.

[201]     I
accept the evidence and opinions of Dr. Hunt and Dr. Owers, who were very
careful in their evidence but unshaken in their assessments of Mr. MacKenzie’s
ongoing condition.  I find their evidence, coupled with the written opinions of
the other experts and treatment providers adduced by the plaintiff, establishes
Mr. MacKenzie suffered moderate soft tissue injuries to his neck, shoulders and
back as a result of the accident.  I find their evidence collectively, based on
their assessments and observations from their repeated physical examinations
and treatments of Mr. MacKenzie, establishes he continues to suffer from
chronic pain particularly in his lower back but also in his neck, shoulders and
mid back region as well. This pain exists notwithstanding his efforts at
improving of his physical condition, the change in the nature of his employment
and numerous attendances at physiotherapy and massage therapy treatments.  I
find on the totality of the medical evidence adduced, supplemented by the
reports of the treatment providers, Mr. MacKenzie continues to suffer from
ongoing chronic pain and the physical limitations as described by Dr. Hunt and
Dr. Owers.  Moreover, I accept their prognosis for significant improvement in
the future is not at all positive; indeed it is unlikely as the nature of the
continuing symptoms has resulted in the development of chronic myofascial pain
syndrome and a permanent partial disability.

B.    The Defendant’s
Case

[202]     In addition to cross-examining the plaintiff and his witnesses,
counsel for the defendant called four witnesses to address aspects of Mr.
MacKenzie’s employment with the Boathouse and Albion Fisheries, as well as to
introduce video evidence of surveillance of Mr. MacKenzie in the Fall of 2009. 
Also tendered in the defence case was the medical-legal report of Dr. John
Oliver who conducted an IME on Mr. MacKenzie in April 2008.

1.     The Non Medical Evidence Adduced on Behalf of the Defendant

a)     Victoria
Elrod

[203]     Victoria Elrod works in the payroll department of the Boathouse and
testified she was asked to change Mr. MacKenzie’s Record of Employment (ROE)
issued when he left the Boathouse in November 2005 in order to properly reflect
the reason for his departure.  Ms. Elrod recalled Mr. MacKenize expressed
concern because the ROE as initially issued did not include the real reason for
his departure: a non-work related injury.  Ms. Elrod agreed in
cross-examination she would never have issued a false document and would not
have issued the revised ROE had it not been accurate.

[204]     Based on the evidence of Ms. Elrod, as confirmed by Mr. MacKenzie’s
evidence, I find it is clear Mr. MacKenzie left the Boathouse Restaurant due to
a non-work related injury, specifically the continuing chronic pain he
experienced from the injuries sustained in the accident.  The ROE had to be
amended to properly reflect that fact and would not have been amended if that
was inaccurate.  Although Mr. Lau’s managerial style and demands may have
played a very limited role in Mr. MacKenzie’s decision to leave, I find that in
the absence of the chronic pain Mr. MacKenzie was experiencing, he would have
remained as a chef with the Boathouse and Mr. Lau’s expectations and demands in
and of themselves would not have caused Mr. MacKenzie to decide he had to
leave.  Thus, I find Mr. MacKenzie’s departure from the Boathouse was due to
the continuing chronic pain from non-work related injuries sustained in the
accident.

b)     Edward
Milkovic and the Videotaped Surveillance of the Plaintiff in October and
November 2009

[205]     Mr. Milkovic, a private investigator hired by ICBC to conduct
surveillance upon Mr. MacKenzie, videotaped Mr. MacKenzie on October 30, 2009,
leaving Albion Fisheries carrying a number of packages.  In November and
December 2009 he videotaped Mr. MacKenzie at the driving range at Redwoods Golf
Course in Langley, B.C.

[206]     The DVD of the video footage obtained by Mr. Milkovic was entered as
Ex. #17 and played during the trial.  While the video footage does show Mr.
MacKenzie hitting golf balls on the driving range, it can hardly be said Mr.
MacKenzie’s golf stroke qualifies as anything close to a fully extended swing. 
This is particularly evident when one observes Mr. MacKenzie’s friend, Raymond
Kishi, practising beside him.  Mr. Kishi demonstrates a full follow through on
his swing and considerable twisting action through the core abdominal and back
area.  In contrast, Mr. MacKenzie’s swing is as described by Dr. Hunt in his
evidence, a half-swing chipping motion.  I do not find this video evidence in
anyway undermines the position advanced by Mr. MacKenzie or the opinion of Dr.
Hunt.  It simply shows a man endeavouring to return to one of the recreational
activities he so clearly enjoyed prior to the accident.  The video depicts limited
and modified rotational movement in the golf excerpts, careful handling of a
limited number of golf clubs in a golf bag and, on one occasion, careful
handling of some Styrofoam packages that do not weigh much more than a total of
20 lbs.

[207]     Nothing in the video surveillance detracts from or contradicts the
overall tenor of the evidence that Mr. MacKenzie sustained soft tissue injuries
in the accident, that chronic pain symptoms, particularly in his lower back,
continue to bother him and flare up from time to time more than six years after
the accident, and that he has taken steps to adapt to his physical difficulties
and chronic pain in returning, on a limited basis, to one of his pre-accident
recreational activities.

c)     Thomas
Karl Argue – the Plaintiff’s Former Manager at Albion Fisheries

[208]     Thomas Karl Argue worked with Albion for almost 10 years, from the
fall of 1998 through to January 2007.  Mr. Argue was the purchasing manager for
Albion and was Mr. MacKenzie’s supervisor for approximately one year.  Mr. Argue
had no difficulties with Mr. MacKenzie’s job performance when he worked as a
purchaser for the company.

[209]     Mr. Argue was aware Mr. MacKenzie applied for the position of
purchasing manager with Albion and recommended he wait a period of time as he
did not have enough experience and knowledge as a purchaser to take on the more
demanding position of purchasing manager.  At the time he applied for the
position, Mr. MacKenzie had only one year of employment experience with the
company in the position of purchaser.

[210]     I accept Mr. Argue’s evidence Mr. MacKenzie was not ready to take on
the role of purchasing manager.  Mr. MacKenzie’s resignation from the position
confirms this point.  The fact that the stress of the position added to Mr.
MacKenzie’s pain and difficulties with his back is not undermined by Mr.
Argue’s evidence about his recommendation to Mr. MacKenzie he not take the
position.  Clearly, Mr. MacKenzie is a highly motivated achiever who wishes to
advance in his employment whenever possible.  Despite his limited experience as
a purchaser, Mr. MacKenzie elected to try and become purchasing manager.  His
inexperience at purchasing coupled with the pressures of the position and the
increased work hours proved to be too much and he had to step down.

d)     Kelly
Gordon – the Plaintiff’s Former Supervisor at the Boathouse Restaurant

[211]     Kelly Gordon is the Vice President of Operations with the Boathouse
and has been employed in that capacity for about 10 years.  He outlined for the
Court the typical career path of a chef with the Boathouse.  Once a staff
member has determined they wish to pursue the career of becoming a chef, they
work to obtain their jo1urneyman papers and their chef’s red seal
certification.  Once a chef has obtained red seal certification and is working
at the Boathouse, they are usually started in one of the smaller restaurants in
the Boathouse group’s six restaurants in the Lower Mainland area.  The average
length of time a chef remains employed with the Boathouse is five to eight
years, although one chef had been there for 25 years and one had lasted only
one and half years.  The average number of hours worked by a chef varies as it
can be seasonal employment.  However, for the most part, Mr. Gordon recalled it
as a 50 hour work week over five days.

[212]     Mr. Gordon explained that in 2005 the New Westminster and White Rock
Boathouse restaurants were relatively close in the amount of revenue they
brought in, though the nature of the work was different with the White Rock
location being more demanding.  In the summer, the White Rock location has
about 160,000 customers a year but is slower in the winter.  On the other hand,
the New Westminster restaurant has about 100,000 customers a year but is fairly
consistent in terms of capacity throughout the year.

[213]     Mr. Gordon explained Mr. MacKenzie was viewed as a very smart and
very competent chef within the Boathouse.  He had pushed the New Westminster
property as far as he could and his performance there had peaked.  In the hope
that a move would “jump start” him and provide him a greater challenge,
management moved Mr. MacKenzie from the New Westminster restaurant to the White
Rock restaurant in January 2005.

[214]     Mr. Gordon acknowledged Mr. MacKenzie’s career path within the
Boathouse was on a steady upward trajectory.  In 2004 he sent numerous e-mails
to Mr. MacKenzie and his team, and some to all the employees within the
Boathouse family, praising Mr. MacKenzie and his team for their continued
excellence in smashing sales records for the New Westminster Boathouse and
other related achievements such as an “A” rating in an internal audit.  Mr.
Gordon acknowledged Mr. MacKenzie was integral to the success of the New
Westminster Boathouse in 2004.

[215]     On January 3, 2005, Mr. MacKenzie was given a raise to $46,500 per
annum and transferred to the more challenging White Rock restaurant location. 
Mr. Gordon explained part of the reason the White Rock location was a more
challenging and trying property was due to its physical configuration of three
different levels with the Chef’s office on the ground floor and kitchens on all
three levels.  Mr. Gordon was aware there was a lot of travel between floors
for the chef and staff, which made the job much more physically demanding,
especially if someone has difficulty remaining on their feet.  However, he was
not aware of the policy at the White Rock location prohibiting staff from using
the elevator to travel between floors when there were customers at the
restaurant.  Mr. Gordon acknowledged the New Westminster location has a partial
split level, but noted the chef remains on one level.

[216]     Mr. Gordon noted Mr. MacKenzie had managed, for the most part, to
get food and labour costs under control at the White Rock location and that by
August 2005, Mr. MacKenzie and his then general manager, Roger Lewis, had
managed to post a 12% sales gain over the previous year, an impressive result. 
By October 2005 the internal system to catch errors such as poor food quality
and wrong food orders showed fewer errors were being made than in the history of
the restaurant.  Up until October 2005, praise and accolades were still being
bestowed upon Mr. MacKenzie for his performance at the White Rock restaurant.

[217]     In October 2005, a new general manager, Doug Lau, was brought into
the White Rock restaurant and within a month of his arrival, Mr. MacKenzie left
employment with the Boathouse.  Mr. Gordon was not aware Mr. Lau wanted Mr.
MacKenzie to be on-line for more time.  He was aware there were some costs and
personnel issues that arose in the fall of 2005, but could not be more
specific.

[218]     Insofar as remuneration of the chefs with the Boathouse was
concerned, generally salaries increase each year as the experience level
increases, provided the chef meets the expected performance standard.  In 2009,
the Head Chef at the White Rock Boathouse earned a gross salary of about
$65,000 per annum with a bonus of up to $10,000.

[219]     I accept Mr. Gordon’s evidence.  It clearly establishes Mr.
MacKenzie was a very talented chef who worked exceedingly hard and was integral
to the success of the New Westminster Boathouse restaurant.  He made similar
efforts and improvements at the White Rock Boathouse during his time there from
January 2005 until his departure in November 2005.

[220]     Mr. Gordon’s evidence is also significant in three further
respects.  It establishes Mr. MacKenzie was still on an upward trajectory as a
chef with the Boathouse when he had to leave his position in November 2005. 
Nothing in Mr. Gordon’s evidence detracts from the inference Mr. MacKenzie
would likely have continued in that capacity for the foreseeable future had he
not been injured in the accident and continued to experience chronic pain as a
result of the injuries sustained.  Mr. Gordon’s evidence also confirmed the
physically demanding nature of the position of Head Chef.  Finally, Mr.
Gordon’s evidence clearly assists in establishing the past wage loss Mr.
MacKenzie experienced once he left the Boathouse, and provides insight and
assistance into assessing the loss of future earning capacity claim.

[221]     Had Mr. MacKenzie remained with the Boathouse and continued in his
positive performance as a Head Chef, his salary and compensation package would
have continued to increase.  Had Mr. MacKenzie been employed with the
restaurant in 2009 he would have earned a gross salary of $65,000 plus a bonus
of about $10,000.  Nothing in the evidence adduced on this trial supports the
inference that absent the chronic pain from the injuries sustained in the
accident, Mr. MacKenzie would have quit his position as Head Chef with the White
Rock Boathouse.  Indeed, I find the weight of the evidence supports the
opposite inference; but for the injuries sustained in the accident and the
ongoing chronic pain he continues to experience, Mr. MacKenzie would have
continued to work as a Head Chef either with the Boathouse or in some other
restaurant for the foreseeable future.

2.     Medical
Evidence Filed on Behalf of the Defendant

[222]     Dr. John Oliver, an orthopaedic surgeon, performed an IME on Mr.
MacKenzie on April 11, 2008.  His brief medical legal report of the same date
was marked Ex. #15.  Dr. Oliver was not required for cross-examination.

[223]     Dr. Oliver expressed the opinion Mr. MacKenzie sustained a strain to
the soft tissues at the back of his neck, mid and lower back region as a result
of the accident.  He noted Mr. MacKenzie experienced pain in these regions for
several months after the accident.

[224]     Dr. Oliver disagreed with Dr. Owers’ opinion that Mr. MacKenzie has
“a chronic pain situation.”  It was Dr. Oliver’s opinion the symptoms of Mr.
MacKenzie’s soft tissue injuries “were aggravated by a condition of general
de-conditioning” and his current symptoms and condition were due to the effects
of de-conditioning.  As far as prognosis was concerned, Dr. Oliver did not
expect any change in Mr. MacKenzie’s condition.

[225]     Dr. Oliver concluded Mr. MacKenzie only experienced temporary change
in his comfort and well-being after the accident and he changed his occupation
from chef to working as a purchaser at Albion Fisheries “based on his
perception of symptoms.”  According to Dr. Oliver, had Mr. MacKenzie continued
with an appropriate exercise program after the accident he would have been able
to continue to work as a chef.

[226]     Dr. Oliver’s recommendation for coping with his current condition
was for Mr. MacKenzie to maintain a daily activity level emphasizing
appropriate stretching and strengthening.

[227]     Although Dr. Oliver’s opinion was not challenged by means of
cross-examination, I do not place a significant amount of weight upon it as to
Mr. MacKenzie’s prognosis or that general de-conditioning was causing his
ongoing symptoms of pain and causing his current pain condition.  Dr. Oliver
simply rejects the diagnosis of the long term attending family physician as to
chronic pain, and provides little in the way of support or analysis as to how,
why or on what basis he concludes it is general de-conditioning that aggravates
or contributes to the current symptoms of pain.  The opinion fails to consider
or assess the demanding nature of the position of a chef and the need for
overall fitness and conditioning to carry out the duties and responsibilities
required of the position.  The opinion also appears to be dismissive of Mr.
MacKenzie’s complaints and difficulties, and contains an element of “it is all
in his head,” as evidenced by the suggestion Mr. MacKenzie changed his
occupation based on his perception of symptoms.

[228]     Overall, Dr. Oliver’s assessment and opinion appears to have a
cursory quality to it and certainly fails to engage in any substantive or
prolonged assessment of Mr. MacKenzie or the totality of the materials such as
that employed by Dr. Hunt.  I find support for this characterization in the
evidence of Mr. MacKenzie, which I accept, that the entire examination took
approximately 30 minutes.  Mr. MacKenzie recalled the physical examination
consisted of measuring his legs, checking his hips and having him bend forward
a couple of times, all of which took about 10 minutes.  The rest of the time
was spent taking his previous history.  Mr. MacKenzie’s recollection of the
physical examination does not appear to be entirely inconsistent with Dr.
Oliver’s outline of the physical examination, although the report also refers
to examination of the reflexes, range of motion of shoulders and palpation of
areas of the lower spine.

[229]     It is also difficult to place much weight on Dr. Oliver’s opinion
given his area of specialty appears to be dealing with treating elite and
Olympic athletes, clearly a different type of patient than Mr. MacKenzie. 
Moreover, his experience in Pain Medicine and addressing chronic or myofascial
pain does not appear to be an evident feature or focus of his practice.

[230]     To the extent Dr. Oliver’s opinion conflicts with the opinions of
Dr. Hunt and Dr. Owers, I prefer the opinions contained in the comprehensive
and detailed reports of Dr. Hunt and Dr. Owers as supported by their careful
and thoughtful evidence in this trial.

VI.  Analysis

A.    Causation

[231]     The question that arises in this case is whether, in the
circumstances, Mr. MacKenzie has established the symptoms he continues to
experience were caused by the accident.  Defence counsel argues that while the
accident may have caused some trauma to Mr. MacKenzie’s neck and back, the
injury was mild, had resolved by the time of the IME in April 2008, and that
any ongoing neck and back pain is likely the result of de-conditioning and
obesity and not the injuries from the accident.

[232]     Questions of causation are to be determined by applying the
principles established in Athey v. Leonati, [1996] 3 S.C.R. 458, and Resurfice
Corp. v. Hanke, 2007 SCC 7.

[233]    
In Sam v. Wilson, 2007 BCCA 622, Mr. Justice Smith,
writing for the majority, noted at paras. 107-109:

[107]    Causation in negligence actions is established by
application of the "but for" test, as was recently explained in Resurfice
Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333:

[21] […] the basic test for
determining causation remains the "but for" test. This applies to
multi-cause injuries.  The plaintiff bears the burden of showing that
"but for" the negligent act or omission of each defendant, the injury
would not have occurred… 

[22] This fundamental rule has
never been displaced and remains the primary test for causation in negligence
actions.  As stated in Athey v. Leonati, [ [1996] 3 S.C.R. 458] at
para. 14, per Major J., "[t]he general, but not conclusive, test
for causation is the ‘but for’ test, which requires the plaintiff to show that
the injury would not have occurred but for the negligence of the
defendant".  Similarly, as I noted in Blackwater v. Plint,
[2005 SCC 58, [2005] 3 S.C.R. 3] at para. 78, "[t]he rules of causation
consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s
damages would have been incurred on a balance of probabilities."

[23] The "but for" test
recognizes that compensation for negligent conduct should only be made
"where a substantial connection between the injury and defendant’s
conduct" is present.  It ensures that a defendant will not be held
liable for the plaintiff’s injuries where they "may very well be due to
factors unconnected to the defendant and not the fault of anyone": Snell
v. Farrell, [ [1990] 2 S.C.R. 311] at p. 327, per Sopinka J.

[108]    Where indivisible damage would not have occurred but
for the combination of multiple tortious causes each tortfeasor is jointly and
severally liable with the others for the whole of the damage so long as his
acts or omissions made a material contribution-beyond de minimis- to the
damage: Athey v. Leonati, supra, [paras.] 41-44; Bonnington
Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.).  The standard
of proof of causation is the balance of probabilities: Athey v. Leonati
[para.] 13.

[109]    "Material
contribution", as that phrase was used in Athey v. Leonati, is
synonymous with "substantial connection", as that phrase was used by
McLachlin C.J.C. above in Resurfice Corp. v. Hanke.  This causal
yardstick should not be confused with the "material contribution
test".

[234]     While the burden is on the plaintiff to establish the injuries were
caused by the defendant’s negligence, the defendant, of course, takes the
plaintiff as he finds him: Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318
(C.A.), at paras. 104-107, 115.

[235]     I am satisfied it is more likely than not the soft tissue injuries
to Mr. MacKenzie’s neck, shoulders and back were caused by the accident of
April 10, 2003.  Indeed all the medical evidence
supports this conclusion, including the report of Dr. Oliver.

[236]     In assessing Mr. MacKenzie’s injuries I am mindful of the caution
expressed by the court in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d)
131, at para. 16 that the court should be very careful when there is little
objective evidence of continuing complaints of pain persisting beyond what the
defence asserts is the “normal recovery period.”

[237]     I have approached Mr. MacKenzie’s evidence with caution, given the
symptoms ordinarily would have resolved.  However, I accept the evidence
of Mr. MacKenzie that his neck, shoulder and back pain has not resolved. I
reject the defence suggestion his ongoing pain is as a result of general
de-conditioning and obesity; the evidence does not support such a finding. The
overarching frustration and distress he has experienced as a result of his
persisting discomfort and pain was evident in his testimony. I find Mr.
MacKenzie’s complaints of continuing neck, shoulder and back pain generally
consistent with the surrounding circumstances and evidence.

[238]     Indeed, the objective observations and assessments of his treating
physicians, his physiotherapist, his massage therapist and Dr. Hunt all confirm
the continued existence of various objective symptoms including taut and
hypertoned muscles, decreased range of movement and tenderness on palpation to
affected areas.  It was not established his reporting to the doctors or
treatment providers was contradictory.  Moreover, the evidence of the
observations of his friends, colleagues and sister over the years provides
support for his complaints of ongoing chronic pain.

[239]     Mr. MacKenzie’s injuries have persisted beyond the expected time of
recovery and the case depends almost entirely on his credibility.  I have noted
I approach his evidence with caution; however, I found Mr. MacKenzie to be a
credible witness, and on the whole of the evidence, I accept he did not have
any neck, shoulder or back pain prior to the accident.

[240]     I find the chronic pain symptoms from the injuries sustained in the
accident persisted much longer than would normally be the case in part due to
the nature of Mr. MacKenzie’s profession, which did not permit him a full
opportunity to recover from the injuries due to the demanding physical nature
of his work as a chef.

[241]     Based on the uncontradicted evidence of Dr. Owers, Dr. Hunt and the
treatment providers, I am satisfied Mr. MacKenzie has met the burden of
proof and established he has suffered moderate soft tissue
injuries in the accident. I am satisfied, despite his best efforts at
rehabilitation through passive and active therapies over the years, he
continues to experience chronic pain in his neck, shoulders and back and he
suffers from chronic myofasical pain syndrome.

[242]     I am also satisfied on the basis of the medical evidence in this
case the chronic pain, manifested as ongoing neck, shoulder and back pain and
chronic myofascial pain syndrome, Mr. MacKenzie still experiences is related to
the injuries he suffered in the accident and are not the product of
de-conditioning and obesity. It is clear from the totality of the
evidence adduced in this case, from Mr. MacKenzie, his friends and family, and
significantly his treatment providers and physicians, Mr. MacKenzie’s neck,
shoulder and back pain persists notwithstanding his efforts at various
modalities of treatment and rehabilitative therapy.  It is further clear the
lingering chronic pain is due to the injuries sustained in the accident. 
Moreover, I specifically reject the suggestion the continuing pain is as a
result of other factors unrelated to the accident, such as obesity or
de-conditioning.

[243]     I
accept Dr. Hunt’s diagnosis that de-conditioning has come about as a result of
the injuries sustained in the accident and this makes it difficult for Mr.
MacKenzie to engage in a rigorous exercise regime.  His increasing weight has
lead to a diagnosis of obesity and is in part a product of his inability to
sustain an ongoing rigorous exercise regime without aggravating the symptoms
related to the injuries. It is also due to his changed pace of activity since
discontinuing employment as a chef.  Mr. MacKenzie is a large framed man at
6’1” and prior to the accident he weighed between 225 and 240 pounds.  At the
time he was assessed by Dr. Hunt he weighed 285 pounds.  By the time of the
trial he was working on reducing and controlling his weight.

[244]     Upon
a consideration of all of the evidence, I find Mr. MacKenzie’s symptoms of
continuing neck, shoulder and back pain are as result of the injuries sustained
in the accident.  The fact that he suffered soft tissue injuries to these areas
is not disputed.  The significance in this case is that the complaint of
chronic pain and symptoms continues and persists well past what would be viewed
as a “normal recovery period.”

[245]     In
summary, having considered Mr. MacKenzie’s own evidence and all of the medical
evidence, I conclude that as a result of the accident Mr. MacKenzie sustained
moderate soft tissue injuries to his neck, shoulder and back and these injuries
have caused him pain and suffering.  I accept Mr. MacKenzie continues to
experience ongoing chronic pain from his injuries.  I find, on balance, there
will be continuing chronic pain suffered by Mr. MacKenzie in the future, likely
indefinitely, and the prospects for significant improvement are unlikely.

B.    Damages

[246]     Mr. MacKenzie seeks the following damages:

i.        Non-pecuniary
damages = $80,000 to $200,000

ii.        Past
Loss of Net Income = $71,974.93

iii.       Loss of
Future Earning Capacity = $455,436.83

iv.       Cost of Future Care = $15,640.00

v.       Special
damages = $9,365.44

1.     Non-Pecuniary
Damages

[247]     The objective of non-pecuniary damages is to compensate a
plaintiff’s pain, suffering, and loss of enjoyment of life. The award is to
compensate a plaintiff for those damages he has suffered up to the date of the
trial and for those he will suffer in the future. The essential principle
derived from the authorities is that fairness and reasonableness of an amount
of an award for non-pecuniary damages is measured by the adverse impact of the
particular injuries on a particular individual plaintiff.   The compensation
awarded should be fair and reasonable to both parties: Andrews v. Grand
& Toy Alberta Ltd., [1978] 2 S.C.R. 229 [Andrews]; Jackson v. Lai,
2007 BCSC 1023, at para. 134 [Jackson]; Kuskis v. Hon Tin,
2008 BCSC 862, at para. 135 [Kuskis].

[248]     For the purposes of assessing non-pecuniary damages, fairness is
measured against awards made in comparable cases.  Such cases, though helpful,
serve only as a rough guide.  Each case depends on its own unique facts: Andrews;
Lindal v. Lindal, [1981] 2 S.C.R. 629, at 637; Jackson; Jenkins
v. Bourcier, 2003 BCSC 388, at para. 87; Radford v. Drobot et al.,
2005 BCSC 293, at para. 62; Kuskis at para 136.

[249]    
The relevant factors in assessing non-pecuniary
damages were comprehensively summarized by Mr. Justice Voith in Lakhani v.
Elliott, 2009 BCSC 1058, at para. 104, citing the majority opinion of the
Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 [Stapley] (see also Kuskis
at para. 138):

The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

a.         age of the plaintiff;

b.         nature of the injury;

c.         severity and duration of pain;

d.         disability;

e.         emotional suffering; and

f.          loss or impairment of life.

I would add the following factors, although they may arguably
be subsumed in the above list

g.         impairment of family, marital and social
relationships;

h.         impairment of physical and mental abilities;

i.          loss of lifestyle; and

j.          the plaintiffs stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163,  2005 BCCA 54).

[250]     Mr. MacKenzie seeks an award of $80,000 to $200,000 for
non-pecuniary damages, arguing such an award is merited on the basis of the
seven years of lack of improvement or diminishment of the pain and the fact he
will experience ongoing pain likely for the rest of his life.  This pain will
prevent him from being a chef and indeed will inhibit his creative abilities
and his ability to express himself in this fashion.

[251]     I have reviewed and considered the cases cited by plaintiff’s
counsel on the issue of non-pecuniary damages: Schellak v. Brar, 2003
BCCA 5,  ($80,000 upheld on appeal for soft tissue injuries that
developed into chronic pain and cognitive difficulties and an inability to
return to her career); Courdin v. Meyers, 2005 BCCA 91, ($200,000 on
appeal for soft tissue injuries and a diagnosis of fibromyalgia and mysofascial
pain that had “crippling effects” on the plaintiff); and, Stapley ($175,000
on appeal for soft tissue injuries with a diagnosis of myofascial pain syndrome
and chronic pain syndrome with recognition for the loss of lifestyle as a ranch
hand of 25 years).

[252]     The defendant submits the soft tissue injuries Mr. MacKenzie
experienced were mild to moderate and, on the evidence, his complaints of back
pain from prolonged standing were evident prior to the accident.  The primary
position of the defence is the ongoing pain symptoms the plaintiff complains of
are due in large part to his de-conditioning and obesity, not the injuries from
the accident, and accordingly non-pecuniary damages should be in the range of
$20,000 to $40,000.

[253]     I have also reviewed and considered the cases cited by defence
counsel on the issue of non-pecuniary damages: Rochon v. Mott, 2009 BCSC
247, ($23,000 for mild to moderate soft tissue injuries that had largely
resolved within a year and a half except for occasional intermittent flare
ups); Khangura v. Zhang, 2007 BCSC 1289, ($26,000 for soft tissue
injuries to the shoulders and back which persisted for two years and remained
symptomatic in the back although significantly diminished); Smith v. Towns,
2005 BCSC 79, ($25,000 for soft tissue injuries in two accidents where there
was a pre-existing degenerative condition; symptoms largely resolved within a
year of the second accident and prognosis was for a full recovery); Rota v.
Ross, 2002 BCSC 1761, ($30,000 for soft tissue injuries the symptoms of
which continued at trial and had plateaued although continued improvement was
expected); and, Lidher v. Toews, 2009 BCSC 1055, ($30,000 for soft
tissue injuries the symptoms of which were found to have been exaggerated and
insufficient appropriate attempts at rehabilitation had been made).

[254]     The difficulties associated with trying to reconcile the awards in
such cases are well known. While the authorities are instructive, I do not
propose to review them any further in these reasons. I am mindful the nature of
the inquiry is such that these cases can serve only to provide guidelines as to
the range of damages awarded in cases with some similarities to the case at
bar.  In this case, as in all others of this kind, the inquiry is highly
factually dependant.  Thus, the quantum of any award will turn, to a very large
degree, on its unique circumstances, having regard to what is fair and just in
light of the nature, extent and duration of Mr. MacKenzie’s injuries and the
impact these injuries have had on his quality of life.

[255]     I accept
the evidence adduced by the plaintiff that Mr. MacKenzie sustained soft tissue
injuries to his neck, shoulder and back as a result of the accident.  The
symptoms of chronic pain have continued to bother Mr. MacKenzie, and nearly
seven years post-accident, he still experiences pain in his neck, shoulder and
back, although primarily in the lower back area.  While the injuries can be
described as moderate soft tissue injuries, I accept the diagnosis and opinion
of Dr. Hunt that Mr. MacKenzie has developed chronic myofascial pain syndrome
and experiences chronic pain to this day.  Thus, the injuries and pain symptoms
continue to affect most every facet of Mr. MacKenzie’s work and non-work life. 
The pain is most significant when Mr. MacKenzie works and overloads his
physical tolerance capacity.  He has had to leave his chosen profession as a
chef due to the increasing pain and difficulty he was experiencing and the
failure to see any significant improvement in his condition.

[256]     I have concluded that as a result of the accident, Mr. MacKenzie has
suffered pain and loss of enjoyment of life, and he will continue to do so for
an indefinite period of time.

[257]     Mr.
MacKenzie struck me as a very stoic and determined individual.  Despite the
ongoing pain he tried to continue to work as a chef, a position he was
passionate about and aspired to continue in for as long as possible, perhaps
even establishing his own restaurant.  He also tried to remain physically
active but found it difficult to do so given the attendant pain associated with
the activities he previously enjoyed, including motorcycling, snowboarding and,
until recently, golfing.  His return to playing golf is a recent development,
but due to the nature of his injuries and ongoing chronic pain symptoms Mr.
MacKenzie has had to alter his style of play and is still not able to play to
the same intensity and level he did prior to the accident.  He has suffered,
and will continue to suffer, some diminishment in his lifestyle.

[258]     The evidence from the plaintiff’s friends and family, coupled
with his own evidence, establishes Mr. MacKenzie enjoyed excellent health and
was involved in the physically active and demanding position of Head Chef
working in a busy restaurant for up to 16 hour shifts prior to the accident. 
Mr. MacKenzie also engaged in demanding outdoor sports activities such as
snowboarding, mountain biking and rollerblading and engaged in extended periods
of riding his motorcycle.

[259]     Taking into account all of these circumstances, the referenced
authorities and the nature of Mr. MacKenzie’s injuries, the relatively enduring
nature of the injuries as manifested through ongoing symptoms of chronic pain
that has developed into chronic myofascial pain syndrome which prohibits him
from returning to the profession he has been passionate about since he was a
young boy, the pain he has suffered and may continue to experience in the
future, as well as the fact he suffered a diminishment in his lifestyle, I
conclude a fair and reasonable award for non-pecuniary damages is $100,000.

a)     Did Mr.
MacKenzie fail to mitigate his loss

[260]    
In Jobs v. Van Blankers, 2009 BCSC 230, I
addressed the duty to mitigate stating at para 107:

[107]    The law imposes upon plaintiffs the
duty to mitigate their losses.  This includes taking reasonable steps to
minimize any loss relating to injuries, so as to prevent plaintiffs from
recovering for harm and loss caused by their own neglect.  In Graham v.
Rogers, 2001 BCCA 432, leave to appeal to S.C.C. refused, [2001] S.C.C.A.
No. 467, Madam Justice Rowles writing for a majority of the Court of Appeal
succinctly stated the principle of mitigation of damages in personal injury
cases at ¶35:

Mitigation goes to limit recovery based on
an unreasonable failure of the injured party to take reasonable steps to limit
his or her loss.  A plaintiff in a personal injury action has a positive
duty to mitigate but if a defendant’s position is that a plaintiff could
reasonably have avoided some part of the loss, the defendant bears the onus of
proof on that issue.

[261]    
In Turner v. Coblenz, 2008 BCSC 1801, Mr
Justice Halfyard summarized the test for failure to mitigate stating at para.
101:

[101]    The defendant bears the onus of proving the
essential elements of failure to mitigate, which are the following:

(a) That a qualified medical expert
recommended that a plaintiff undergo a particular form of treatment;

(b) That the plaintiff failed or
refused to take the recommended treatment although it was available to him or
her; and

(c) That the plaintiff’s refusal or
failure was unreasonable, in that if the plaintiff had taken the recommended
treatment, there is some likelihood that he or she would have received
substantial benefit from it, and the treatment would not expose the plaintiff
to significant risk.

See Janiak v. Ippolito
[1985] 1 S.C.R. 146; Chiu (guardian ad litum of) v. Chiu
2002 BCCA 618 at paragraph 57; and Middleton v. Morcke 2007 BCSC
804 at paragraph 37.

[262]     In this case, the defence argues Mr. MacKenzie has failed to take
reasonable steps to assist in his own recovery by failing to follow the advice
of his physician, Dr. Owers, as well as the advice of his massage therapist and
physiotherapist of the need to maintain an exercise regime in 2006.  In January
2006, Dr. O’Connor recommended a program of walking and core strengthening was
appropriate and Dr. Hunt agreed with the recommendation.

[263]     Dr. Owers testified he disagreed with Dr. O’Connor’s recommendation
once he had a better appreciation of the physical demands placed upon Mr.
MacKenzie in his position as a chef.  However, Dr. O’Connor’s recommendation
for increased walking and core strengthening came at a time after Mr. MacKenzie
had left his employment as a chef and so Dr. Owers’ disagreement on this point
appears to be without an adequate foundation.

[264]     While Dr. Hunt’s opinion Mr. MacKenzie had done the best he could in
the circumstances and demonstrated a remarkable degree of core strength and
physical conditioning is helpful, it is not determinative on this particular
point, as Dr. Hunt did not see Mr. MacKenzie until three years after Dr.
O’Connor’s assessment and recommendation.  Since returning to work in 2007, it
is apparent Mr. MacKenzie has followed the advice of his treatment providers
and has returned to an exercise regime which has assisted him in gaining the
core strength he demonstrated to Dr. Hunt is his physical assessment.  Dr. Hunt
also recommended Mr. MacKenzie continue with his exercise regime.

[265]     Of
importance on this point is the fact Mr. MacKenzie’s physiotherapists and
massage therapist continually noted the need for an ongoing exercise program to
assist in rehabilitation, and Mr. MacKenzie was not as fully engaged in this as
he could be due to his work commitments.

[266]     Of further significance is the fact Mr. MacKenzie started an
exercise program in early 2006, shortly after leaving his employment with the
Boathouse, attending the gym one or two times a week working out with a friend
who acted as a personal trainer.  This exercise regime did provide a noticeable
measure of relief but Mr. MacKenzie discontinued it while he went back to
school to upgrade in 2006.

[267]     After
this, Mr. MacKenzie did not continue to follow the doctors’ and treatment
providers’ advice to engage in an appropriate exercise program.  Although he
may have been busy first with work as a chef, and then in attending school once
leaving the restaurant industry, he also had a duty and obligation to assist in
his recovery.  The defendant is not obliged to compensate a plaintiff who fails
to take proper steps to reduce the extent of the loss.  I find, while Mr.
MacKenzie stoically endeavoured to maintain his employment status as a chef
through other treatment modalities, he may well have compromised, to a limited
a degree, his recovery by failing to follow the repeated recommendations of his
physiotherapist, massage therapist and Dr. Owers that he maintain an exercise
regime.  This became especially significant once he stopped working as a chef
and had more time to devote to this aspect of his rehabilitation.  When he
engaged in an exercise regime in early 2006 it did provide a measure of
relief.  Moreover, I find that if Mr. MacKenzie had continued to engage in the
recommended treatment of an appropriate exercise program throughout 2006, there
is some likelihood he would have received substantial benefit from it, and such
treatment certainly would not expose him to any significant risk.

[268]     In the
end, I am satisfied the defence has met the onus of proving the essential
elements of failure to mitigate in this case by establishing Mr. MacKenzie
failed to follow the repeated recommendations of engaging in a regular exercise
regime, and accordingly reduce the non-pecuniary damages by 10% to reflect this
short term failure in 2006 to continue with his physical exercise program.

2.     Loss of
Income and Income Earning Capacity

[269]     Two of the more significant issues in this case are whether there
should be awards for past wage loss and for loss of future earning capacity. 
Counsel for Mr. MacKenzie relies upon the evidence of Mr. Kelly Gordon, the
Vice President of Operations with the Boathouse, as establishing Mr. MacKenzie
has experienced not only a significant past wage loss from January 2006 until
the time of trial but will also experience a substantial loss of earnings
through the future of his working life given his inability to continue in his
chosen profession as a chef.  Counsel also argues any award for loss of future
earning capacity must also reflect and compensate for the loss of a capital
asset.  In the end, counsel for Mr. MacKenzie seeks an award of $71,974.93
for past loss of income (net) and $455,436.83 for loss of
future earning capacity.

[270]     Counsel for the defendant argues Mr. MacKenzie has not established a
permanent or ongoing injury such that he can no longer work in his profession
as a chef.  On the contrary, counsel argues Mr. MacKenzie’s continuing to work
as a chef until November 2005 demonstrates he is capable of continuing to work
in his chosen profession.  Defence counsel asserts Mr. MacKenzie’s departure
from the Boathouse was not due to his injuries but rather a disagreement
between Mr. MacKenzie and his new general manager, Doug Lau.  The defence
argues no award should be made for past loss of income or loss of future
earning capacity, contending generally the evidence is insufficient to justify
any award under this head of damages

[271]     Before addressing the specifics of the arguments and the
circumstances of this case, I will review the general principles governing
awards for damages for loss of past income and loss of future earning capacity.

a)     Legal
Principles

[272]     The principle that governs the assessment of an award for loss of
income and earning capacity is that, insofar as possible, the plaintiff should
be restored to the position she or he would have been in if not for the
injuries caused by the defendant’s negligence: Lines v. Gordon, 2009
BCCA 106, at para. 185; Falati v. Smith, 2010 BCSC 465 [Falati],
at para. 38.

[273]     Although a
claim for "past loss of income" is often characterized as a separate
head of damages, it is properly characterized as a component of loss of earning
capacity.  It is a claim for the loss of value of the work an injured plaintiff
would have performed but was unable to perform because of the injury: Rowe
v. Bobell Express Ltd., 2005 BCCA 141, at para. 30; Bradley v. Bath,
2010 BCCA 10, at paras. 31-32; and Falati at para. 39.

[274]     Insofar as
assessing a claim for loss of future earning capacity is
concerned, two issues arise: (1) has the plaintiff’s earning capacity been
impaired to any degree by his injuries and, if so (2) what amount should be awarded:
Fox v. Danis, 2005 BCSC 102, at para 91 [Fox]; Kuskis at
para. 151.  Compensation must be made for the loss of earning
capacity and not for the loss of earnings: Andrews.

[275]    
In Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44
(C.A.), at 59 Madam Justice Southin, writing for the Court of Appeal, stated:

Because it is impairment that is being redressed, even a
plaintiff who is apparently going to be able to earn as much as he could have
earned if not injured or who, with retraining, on the balance of probabilities
will be able to do so, is entitled to some compensations for the
impairment.  He is entitled to it because for the rest of his life some
occupations will be closed to him and it is impossible to say that over his
working life the impairment will not harm his income earning ability.

[276]     Recent jurisprudence from the Court of Appeal establishes a
plaintiff must demonstrate impairment in his or her earning capacity and there
is real and substantial possibility the diminishment in earning capacity will
result in a pecuniary loss.  If the plaintiff discharges this requirement, he
or she may prove the quantification of the loss of future earning capacity
either on an “earnings approach” or a “capital asset” approach: Perren v.
Lalari, 2010 BCCA 140 [Perren], at para. 32.  In
essence, however, in making an assessment under this head of damages, what the
court must endeavour to quantify is the financial harm accruing to the
plaintiff over the course of his or her working career: Pett v. Pett,
2009 BCCA 232, at para. 19.

[277]    
In Reilly v. Lynn, 2003 BCCA 49, at para
101, Mr. Justice Low, writing for the majority, summarized the relevant
principles in assessing damages for loss of future earning capacity, stating:

[101] The relevant principles may be briefly
summarized. The standard of proof in relation to future events is simple
probability, not the balance of probabilities, and hypothetical events are to
be given weight according to their relative likelihood: Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to compensation for
real and substantial possibilities of loss, which are to be quantified by
estimating the chance of the loss occurring: Athey v. Leonati, supra,
at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135
(C.A.). The valuation of the loss of earning capacity may involve a comparison
of what the plaintiff would probably have earned but for the accident with what
he will probably earn in his injured condition: Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the inquiry;
the overall fairness and reasonableness of the award must be considered: Rosvold
v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder
v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the
Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Finally, since the course of future events is unknown, allowance must be made
for the contingency that the assumptions upon which the award is based may
prove to be wrong: Milina v. Bartsch, supra, at 79. In adjusting
for contingencies, the remarks of Dickson J. in Andrews v. Grand & Toy
Alberta Ltd., supra, at 253, are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts of
the individual case, particularly the nature of the plaintiff’s occupation, but
generally it will be small …

[278]    
To determine the question of whether a plaintiff has
established an impaired future earning capacity the court considers the following criteria established by Mr. Justice Finch (as he then
was) in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) [Brown],at
para. 8:

a.         Whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment;

b.         Whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

c.         Whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might have otherwise been open to him, had he not been injured; and

d.         Whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market. (see also Rosvold at para. 10; Kuskis at para.
152).

[279]     In Bedwell v. McGill, 2008 BCCA 6, at para. 53, the Court of
Appeal clarified the issue of proof, holding it is necessary for a plaintiff to
prove a substantial possibility of a future event leading to an income
loss.  The plaintiff is not required to prove this loss on a balance of
probabilities (see also Steward v. Berezan, 2007 BCCA 150, at para.
17).  However, there needs to be some “cogent evidence” to trigger the Brown
considerations: Marcelino v. Francesutti, 2002 BCSC 1711, at para.
57; Carvalho v. Angotti, 2007 BCSC 1760, at para. 59.  In Moore
v. Cabral et al., 2006 BCSC 920, at para. 78, Madam Justice MacKenzie (as
she then was) stated that “ongoing symptoms alone do not mandate an award for
loss of future earning capacity.”

[280]     To quantify a loss of earning capacity, the court conducts an
assessment, based on the evidence, rather than applying a purely mathematical
calculation: Rosvold at para. 11; Kuskis at para. 153; Durand
v. Bolt, 2007 BCSC 480.  For assessment purposes, income earning
capacity is viewed as a capital asset where all relevant negative and positive
contingencies must be considered: Kuskis at para 154; Fox at
paras. 92, 102-103.  In addition, the overall fairness and reasonableness
of the award must also be taken into account: Rosvold at para. 11.

[281]     In terms of relevant contingencies that need to be considered, they
may be general or specific in nature.  Relevant contingencies can include
such things as the potential for improvements in health, opportunities for
advancement, decline in the economy and loss of employment, as well as the
usual chances and hazards of life: Djukic v. Hahn, 2006 BCSC 154, at
para. 105; Kuskis at para. 155.

[282]     I turn now to a consideration of the two income loss claims advanced
in this case: (i) past wage loss or past loss of income and (ii) loss of future
earning capacity.

b)     Past loss
of income

[283]     Counsel for Mr. MacKenzie argues Mr. MacKenzie had to leave his
position as Head Chef with the White Rock Boathouse Restaurant on November 25,
2005, because he could no longer perform his duties given the continuing
chronic pain he experienced as a result of the injuries he sustained in the
accident.  The ROE issued upon Mr. MacKenzie’s departure states he left due to
non-work related injuries.  Mr. MacKenzie received a severance package which
paid him out until the end of January 2006.  Thereafter he received employment
insurance benefits and then started to work for Albion in early 2007.

[284]     Although the defence contends Mr. MacKenzie left his position as
Head Chef at the White Rock Boathouse Restaurant due to difficulties with his
new general manager, Doug Lau, I have found to the contrary and concluded Mr.
MacKenzie left because he could no longer continue to function as Head Chef,
given the ongoing chronic pain he experiences in his neck, shoulders and back.

[285]     I am satisfied, on a balance of probabilities, Mr. MacKenzie would
have continued to work as a Head Chef within the Boathouse had he not been
injured and continued to endure chronic pain as a result of the accident
injuries.  I find it highly unlikely Mr. MacKenzie would have left his position
as Head Chef at the White Rock Boathouse Restaurant simply because he and Mr.
Lau may have had a difference in opinion as to how and where he should be
spending his time.  But for his ongoing chronic pain from the injuries, Mr.
MacKenzie would have been able to manage and cope with Mr. Lau’s expectation
that he be on-line and in the kitchen for longer hours.  It is in the context
of ongoing chronic pain due to the injuries from the accident Mr. MacKenzie was
not able to meet Mr. Lau’s expectations, not simply a personality and
management style disagreement, as the defence contends.  Indeed given Mr.
MacKenzie’s passion for cooking, if the reason for his departure from his
employment was as the defence contends, then I have no doubt, given Mr.
MacKenzie’s considerable talents, skills and dedication to his craft, he would
have found another position as a Head Chef or Executive Chef.  The fact he has
been unable to do so reinforces my conclusion Mr. MacKenzie left his position
as Head Chef due to the non-work related injuries he sustained in the accident
and which continue to plague him through ongoing chronic pain.

[286]     In this case, the claimed losses for “past loss of income” are
readily measurable from a conventional income stream by assessing what Mr.
MacKenzie earned previously as a Head Chef, his income for the period from
January 2006 to the commencement of the trial and what a Head Chef with the
Boathouse earned in 2009, as described by Mr. Gordon in his evidence. 
According to Mr. Gordon, in 2009 the Head Chefs at the White Rock and English
Bay Boathouse restaurants earned a gross income of $75,000 ($65,000 plus bonus
of $10,000).  Mr. Gordon also testified the salary package for their employees
included a modest raise every year.

[287]     In 2005, Mr. MacKenzie earned a gross employment income of
$57,116.10 as Head Chef with the White Rock Boathouse and had a net income of
$42,706.06 (75% of the gross income) as outlined in his tax return information.

[288]     Mr. MacKenzie’s net employment income, based on income tax
information and employment records, for the relevant time frame of his
departure from the Boathouse to the end of 2009 was as follows:

2005             $42,706.06
[Head Chef: White Rock Boathouse]

2006             $20,687.23
[Employment Insurance Benefits mainly]

2007             $33,194.01
[Purchaser: Albion Fisheries]

2008             $43,075.26
[Purchasing Manager: Albion Fisheries]

2009             $35,742.57
[Purchaser: Albion Fisheries]

[289]     Based on Mr. Gordon’s evidence, counsel for Mr. MacKenzie calculated
an average net salary increase of $3,386 per annum between 2005 and 2009 for a
Head Chef with the Boathouse.  As a consequence, counsel estimated the net
income for a Head Chef with the White Rock or English Bay Boathouse Restaurants
for the relevant time frame would be as follows:

2005             $42,706

2006             $46,092

2007             $49,478

2008             $52,864

2009             $56,250

[290]     On the basis of the foregoing estimates, counsel argues Mr.
MacKenzie experienced a $71,974.93 past net wage loss given the difference in
what he actually earned and what he would have earned had he continued in his
position as a Head Chef.  The break down for the past net wage loss for 2006
through 2009 is as follows:

2006             $25,404.77

2007             $16,283.99

2008             $
9,788.74

2009             $20,507.43

[291]     Given the medical evidence concerning Mr. MacKenzie’s injuries, and
his own evidence about their effect, which I have accepted, coupled with my
finding Mr. MacKenzie left his position as Head Chef at the White Rock
Boathouse Restaurant due to the continuing chronic pain from the injuries
sustained in the accident, I am satisfied the past net wage loss has indeed
occurred and been established in the evidence.

[292]     This results in a total past loss of net income of $71,974.93 over
the period from January 2006 to trial, as outlined above for each taxation
year, for which Mr. MacKenzie is entitled to be compensated.

c)     Loss of Future Earnings (Income Earning Capacity)

[293]     Counsel for the plaintiff argues that under the overall head of
damages for loss of future earning capacity, the plaintiff ought to be awarded
a global amount of $455,436.83.  Counsel argues this overall award contains two
distinct and separate components to the loss of future earning capacity for
which Mr. MacKenzie needs to be compensated.  He argues the overall award for
loss of future earning capacity must reflect both: (i) the future net income
loss as represented by the “shortfall” in net annual earnings (essentially the
earnings approach as discussed in Perren) and (ii) the loss of a capital
asset.

[294]     Under
the first category, future net income loss, counsel provided a straightforward
mathematical calculation to arrive at a net present value award of $355,436.83
said to represent the “shortfall” Mr. MacKenzie will experience over his
employment lifetime by being unable to continue to work as a Head Chef with the
Boathouse due to the ongoing chronic pain symptoms he suffers as a result of
his injuries from this accident.

[295]     Counsel
for the plaintiff relies on the evidence of Kelly Gordon, which establishes
that in 2009 a Head Chef at the White Rock and English Bay Boathouse locations
earned a net income of $56,250 including bonuses (a total gross income of
$75,000).  In 2009, Mr. MacKenzie earned a net income of $35,742.57 as a
Purchaser for Albion Fisheries.  Comparing Mr. MacKenzie’s current income at
Albion with what he could be making if he was still employed as a Head Chef
with the Boathouse results in a difference and loss of $20,507.43 a year. 
Accepting this figure as the future net income loss per year, argues
plaintiff’s counsel, one is able to calculate the net present value of the net
future income loss or shortfall by examining the Present Value Table in CIVJI.

[296]     Mr.
MacKenzie was 41 at the time of trial and could, argues his counsel, be
expected to work to age 65.  This represents 23 years of lost employment
opportunity as a Head Chef.  Using the accepted 2.5% column and the year 23
column in the CIVJI Present Value Table, the applicable multiplier of
17.3321 as applied to the calculated per year future net income loss, according
to plaintiff’s counsel, results in a net present value for future net income
loss of $355,436.83.

[297]     The
second component of the overall award for loss of future earning capacity is
the loss of a capital asset.  Here counsel for the plaintiff argues the capital
asset approach ought to be applied and suggests an amount of $100,000, slightly
more than one year’s salary as a Head Chef, is appropriate.  Under this
category, counsel for the plaintiff argues Mr. MacKenzie meets all four of the Brown
criteria and thus he ought to be compensated under this component as well.

[298]     To be more specific, counsel for the plaintiff submits the loss of a
capital asset approach recognizes the further loss, apart from the strictly
mathematical future net income loss, Mr. MacKenzie will experience in his
inability to advance his career as a Chef, to move on to being an Executive
Chef or a chef on a cruise ship or running his own restaurant over his working
life and that this is a further loss he will bear as a result of the injuries
he sustained in the accident.

[299]     Counsel
for the defendant argues Mr. MacKenzie has not lost the capacity to work as a
chef, as demonstrated by his continued work as a chef until he left his
employment with the Boathouse in November 2005.  Counsel notes Mr. MacKenzie
continued to receive accolades and awards while employed with the Boathouse,
and it was not until the change of managers at the White Rock Boathouse
Restaurant in the fall of 2005 that things started to deteriorate for Mr. MacKenzie. 
Defence counsel’s argument there has been no loss of earning capacity hinges on
his position the real reason Mr. MacKenzie left the White Rock Boathouse
Restaurant in November 2005 was because he did not get along with the new
general manager.

[300]     However, I have found to the contrary.  Moreover, counsel’s
argument ignores the fact Mr. MacKenzie continued to work but also continued to
experience chronic pain in his neck, shoulders and back and had to rely upon
repeated resort to physiotherapy, IMS injections and massage therapy to keep
him functioning in his position as Head Chef.

[301]     I
have found, and accept, the reason Mr. MacKenzie left his employment as Head
Chef with the White Rock Boathouse restaurant was due primarily to his
inability to continue to cope with the ongoing chronic pain he was experiencing
from his injuries.  The heightened demands and expectations made by Mr. Lau
upon Mr. MacKenzie, coupled with the challenging physical configuration of the
White Rock location, all combined to serve as the breaking point for Mr.
MacKenzie, and he was no longer able to function in his position as the Head
Chef.  In the absence of the ongoing chronic pain, I have no doubt Mr.
MacKenzie would have continued in his profession as a chef either within the Boathouse
or with another restaurant.

[302]     In the alternative, the defence argues, at its highest, Mr.
MacKenzie’s loss is very limited, confined to the fact he is not able to work
as a chef in a very particular setting: the White Rock Boathouse Restaurant
given its peculiar physical configuration.  On this basis, the defendant
submits the appropriate approach to the assessment of any limited loss of
future earnings is through the capital asset approach established in Brown, instead
of reference to the loss of earnings approach through reference to earnings
history.

[303]     I have already concluded that, as a result of the accident, Mr.
MacKenzie has been left with chronic pain in his neck, shoulders and back and
has developed chronic myofascial pain syndrome which prevents him from
returning to heavy physical employment such as that of his previous profession
as a chef.  I also accept, as proven on a balance of probabilities, nothing
more than a modest improvement in his physical condition can reasonably be
expected.  In these circumstances, I have no hesitation in accepting Dr. Hunt’s
opinion the accident and injuries suffered have caused Mr. MacKenzie to sustain
a permanent partial disability which has rendered Mr. MacKenzie less
competitively employable than he was before the accident.

[304]     Based on the general principles cited previously, the argument of
plaintiff’s counsel that loss of future earning capacity should be divided into
two distinct components with the earnings approach resulting in the calculated
mathematical shortfall of $355,436.83 representing the calculated future loss
of net income plus an additional $100,000 in recognition of the loss of a
capital asset is not supported by the current approach to calculating loss of
future earning capacity: Perren at para. 32.  Moreover, it appears to
essentially double count aspects of the overall award for loss of future
earning capacity.

[305]     Significantly, the first component of the overall award sought by
counsel, as evidenced in the calculated “shortfall” of future loss of net
income, fails to take into account any of the usual positive and negative
future contingencies typically considered and factored into the calculation and
assessment of such awards.

[306]     I accept there is a real and substantial possibility the injuries
Mr. MacKenzie sustained in the accident and which have developed into chronic
myofascial pain syndrome will preclude him from working as chef in future and
he is limited in performing any realistic alternative occupation at that
physically demanding level.  It is also clear from the evidence I have accepted
and the facts I have found, Mr. MacKenzie has demonstrated his injuries have
resulted in an ongoing impairment which will continue to affect his ability to
work in his chosen profession, or any similar profession, and therefore will
cause a pecuniary loss over the course of his working career.  The loss
includes the inability to continue to work as a Head Chef or senior chef, or to
advance further to the position of executive chef and earn an even higher income
than what he was earning when he left the Boathouse in 2005 and what the
Boathouse was paying in 2009.  Mr. MacKenzie had a definite career path as a
chef, and was considered to be a strong contributor to the Boathouse.  It is
what he spent his entire youth and working career successfully pursuing until
his departure in November 2005.  His options for other alternative careers are
restricted, given his limited education and age and his likely inability to
engage in heavy physical work in the future.

[307]     I conclude Mr. MacKenzie has established on a balance of
probabilities the injuries he sustained in the accident have impaired his
long-term earning capacity.  The preponderance of evidence also establishes a
real and substantial possibility the impairment in his earning capacity will
result in a pecuniary loss in the future.  Having found Mr. MacKenzie’s earning
capacity is diminished due to the injuries sustained in the accident, I must
decide in light of the evidence regarding his skills, education and abilities
the amount he should be awarded for the impairment.

[308]     While the projected future loss of net income figure of $355,436.83
advanced by plaintiff’s counsel is instructive, it must be remembered this is
not a purely arithmetic exercise of calculations.  Moreover, as noted in Perren
at para. 30 and Rosvold at para. 8, it is not the loss of projected
future earnings but the loss or impairment of earning capacity for which
compensation must be made.

[309]     In
some cases, projections from past earnings may be a useful factor to consider
in valuing the loss, but past earnings are not the only factor to consider;
other unknowns or contingencies must be weighed in the assessment as well. To that end, the figure of $355,436.83, representing the net present
value of the net future income loss, is illustrative of the loss through the
earnings approach to quantification of the future income loss, but it does not
reflect the necessary adjustments for positive or negative future contingencies
of life that make such losses uncertain.  No expert evidence from an economist
or an actuary was adduced to assist on the issue of adjustments of this
nature.  Accordingly, I am left to consider the positive and negative
contingencies as best I can in the circumstances.

[310]     Positive contingencies to consider in this context would likely
include being promoted and earning an even greater salary and bonuses than what
the Boathouse currently provides to its best senior chefs, or other
unpredictable promotions, raises and advancements or other forms of good
fortune.

[311]     Negative contingencies to consider which might result in a decrease
in future earning capacity in this context would include general labour market
contingencies in a volatile industry that is significantly dependent on the
overall health of the economy and can thereby result in lost income due to
lay-offs, strikes, no increase in salary or no bonuses; deciding to leave the
profession due to burn out, dissatisfaction or other personal reasons; becoming
ill; sustaining an unrelated injury; or dying prematurely.  All of these
contingencies need to be considered in the overall assessment of what
constitutes an award that is fair and appropriate to all the parties.

[312]     The evidence mandates that I must weigh in the balance the other
strong contingencies including the prospect for a very modest improvement in
Mr. MacKenzie’s symptoms through increased fitness and weight loss and learning
coping techniques to manage his pain.  There is also the strong possibility,
notwithstanding his injury and continuing symptoms, Mr. MacKenzie will find
employment in the future with either equivalent or better wages than that of a
full-time chef.

[313]     The evidence from this trial clearly establishes Mr. MacKenzie was a
dedicated, hard working and talented Head Chef with the Boathouse at the time
of the accident and after.  Despite his injury and the ongoing neck, shoulder
and back pain he experienced, he managed to continue to work as a Head Chef for
a further two and half years after the accident, albeit at a personal cost to
his physical health and rehabilitation.

[314]     Although Mr. MacKenzie did return to his employment after the
accident and tried to work through the continuing pain, he ultimately had to
leave his position as Head Chef in November 2005 due to the continuing chronic
pain from his injuries.  In some respects, the possibility of a future event
leading to an income loss has already been established through his departure
from his position as Head Chef.

[315]     The
totality of the evidence confirms Mr. MacKenzie is no longer able to work as a
chef due to the injuries he sustained in the accident and the resulting ongoing
chronic pain he experiences as a result. Moreover, the
evidence which I have accepted establishes Mr. MacKenzie will be limited in
performing any realistic alternative occupation as, on the accepted medical
evidence, he can no longer be employed in fields which involve heavy physical
labour.

[316]     Mr. MacKenzie’s work ethic and positive attitude have remained
intact since the accident but he is now limited in the type of work in which he
can engage. On Mr. MacKenzie’s evidence, he is no longer able to carry out the
physically demanding profession of a chef and has retrained and taken
employment, still within the food industry, which is far less physically
demanding but currently provides a reduced rate of remuneration.  He has the
potential to advance within that area to the position of purchasing manager, as
demonstrated by his attempt to do so in 2008.  In 2009, he stepped down from
that position due primarily to his inexperience in the industry and the stress
the position created for him.  With more experience, improvement in his health
through weight loss, following an established exercise regime and through
management of his pain, he may well be able to advance and become a purchasing
manager again.

[317]     Mr. MacKenzie testified his dream of opening his own restaurant has
been compromised by the injuries he sustained in the accident due to the
ongoing pain he continues to experience.  While his plans in this regard may well
be on hold, the speculative nature of whether this will actually be the case
let alone whether such an operation would be successful remains too remote as
to require anything more than an acknowledgment that it has been considered as
a factor in my overall assessment of the award for loss of future earning
capacity.

[318]     Addressing the factors from Brown, as endorsed in Rosvold,
in the context of this case, I am of the view Mr. MacKenzie has been rendered
less capable overall from earning income from all types of employment,
particularly because he is already limited in scope of professional advancement
given his education level, having left school after Grade 8 to pursue cooking
and only recently achieving his Grade 12 equivalency in 2006.  Second, without
the ability to sustain prolonged physically demanding work, as evidenced by his
increasing lumbar load tension as the work week progresses and the recommended
work restrictions made by Dr. Hunt, Mr. MacKenzie is less marketable and less
attractive as an employee in the areas of employment where he might be able to
work.  Third, there is a real possibility Mr. MacKenzie has lost the ability to
take advantage of all job opportunities that might otherwise have been open to
him had he not been injured in the accident.  Finally, I accept Mr. MacKenzie
is less valuable to himself as a person capable of earning income in a
competitive employment market.  As such an award for loss of future earning
capacity is warranted.

[319]     In applying the relevant legal principles and gazing "deeply
into the crystal ball" as described by the Court in Andrews, I am
left to make an assessment as it relates to Mr. MacKenzie’s injuries to his
neck, shoulders and back and the ongoing chronic pain and chronic myofascial
pain syndrome that has developed from these injuries.  Taking into account all
of the evidence and the many future positive and negative contingencies
that may arise, including the prospect Mr. MacKenzie’s health
and symptomology might make a modest improvement through weight loss, further
improvement in his fitness level and learning pain management techniques to
cope with his pain and that he will continue to work in an area of the food
industry but one which is less physically demanding and will require less heavy
lifting than he did prior to the accident, I conclude Mr. MacKenzie has
established the real and substantial possibility of a future event leading to
an income loss as a result of the injuries he sustained in the accident and the
ongoing chronic pain symptoms he experiences to this day.

[320]     The exercise of assessing loss of future earning capacity is not
purely mathematical.  Taking into account all of the evidence and future
contingencies that may arise, as well as balancing all of the factors as best I
can, and bearing in mind the need to be fair and reasonable to both sides, I
assess the total of Mr. MacKenzie’s loss of future earning capacity at
$200,000.

3.     Cost of
Future Care

[321]     In Izony v. Weidlich, 2006 BCSC 1315, at para. 70, Mr. Justice
Masuhara addressed cost of future care awards stating:

70.       At the outset, I note that the cost of future care
award is "by its nature notional and not a precise accounting exercise to
determine the strict minimum" required by the plaintiff: Strachan
(Guardian ad Litem of) v. Reynolds, 2006 BCSC 362.  In Courdin v. Meyers
(2005), 37 B.C.L.R. (4th) 222, 2005 BCCA 91 at [paragraph] 34, our Court of
Appeal endorsed the following approach to dealing with the many imponderable
factors and contingencies in assessing damages in this category:

Damages for cost of future care are a matter of prediction.
No one knows the future. Yet the rule that damages must be assessed once and
for all at the time of trial (subject to modification on appeal) requires
courts to peer into the future and fix the damages for future care as best they
can. In doing so, courts rely on the evidence as to what care is likely to be
in the injured person’s best interest. Then they calculate the present cost of
providing that care and may make an adjustment for the contingency that the
future may differ from what the evidence at trial indicates. (Krangle
(Guardian ad litem of) v. Brisco, [2002] 1 S.C.R. 205, 2005 SCC 9 at
[paragraph] 21.)

[322]    
The plaintiff is entitled to be compensated for
all expenses reasonably necessary for his future medical care: see Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) [Milina], aff’d (1987),
49 B.C.L.R. (2d) 99 (C.A.). The test to be applied when the
court considers awarding the cost of future care was set out by McLachlin J.
(as she then was) in Milina at 84 as follows:

The test for determining the appropriate award under the
heading of cost of future care, it may be inferred, is an objective one based
on medical evidence.

These authorities establish:

(1)        that there must be a medical justification for
claims for cost of future care; and

(2)        that the claims must be reasonable.

[ … ]

The award for cost of care
should reflect what the evidence establishes is reasonably necessary to
preserve the plaintiff’s health.

[323]     Consequently, in making an award for cost of future care, the court
must take into account both what is medically required and what expenses the
plaintiff will likely incur.  Items and services the plaintiff is unlikely to
use in the future cannot be justified as reasonably necessary aspects of the
cost of future care: Kuskis at para 164.

[324]     The applicable principles to the claim for the cost of future care
were not disputed in this case.  The provision of adequate future care is of
primary importance in assessing damages for serious injury, and it must be
based on what is reasonably necessary to promote the mental and physical health
of the plaintiff.

[325]     In the current case, Dr. Hunt made several recommendations for
future care items and services for Mr. MacKenzie.  They include: continuing
physiotherapy (including IMS injections); massage therapy; consulting with an
occupational therapist; consulting with a psychologist experienced in chronic
pain; and working with a physiatrist who specializes in treating chronic pain. 
Included in the suggested course of treatments to be administered by the
physiatrist was a recommendation Mr. MacKenzie try trigger point injections and
Botox injections to help dampen muscle reactivity and spasm and to facilitate
retraining of the muscles.  Dr. Greenberg endorsed continuation of regular
physiotherapy, massage therapy or acupuncture for an extended period of time to
prevent the worsening of pain.

[326]     Dr. Hunt also suggested Mr. MacKenzie receive assistance with medium
to heavy work related to home activities and he ought to avoid any repetitive
work involving the use of his lower lumbar spine.

[327]     Based
on the recommendations of Dr. Hunt, Mr. MacKenzie’s counsel prepared a chart
outlining the estimated one-time and annual costs for proposed future care for
the next two years.  The annual costs for the recommended treatments sought by
Mr. MacKenzie total $14,640 and the one-time cost for consulting with an
occupational therapist totals $1,000.  Thus Mr. MacKenzie seeks a total award
of $15,640 for costs of future care.

[328]     The
defence did not seriously dispute the appropriateness of the recommendation for
psychological counselling or consulting an occupational therapist, if the court
finds the ongoing symptoms Mr. MacKenzie experiences relate to the injuries he
sustained in the accident.  As I have found that to be the case, the claim for
cost of future care for the psychologist and occupational therapist are
allowed, both representing reasonable claims that are medically justified in the
circumstances

[329]     Defence counsel argues all other therapies are not medically
justified and relies upon Dr. Owers’ suggestion that physiotherapy is no longer
required.  He also argues the IMS injections do not appear to be working as
relief is only temporary and in any event should be supplemented with regular
exercise to obtain the maximum benefit.

[330]     While the IMS injections may not be “curing” the plaintiff, they
clearly assist him, as does the physiotherapy and massage therapy.  Mr.
MacKenzie testified the IMS injections were painful but he continued to engage
in the therapy as it allowed him, in concert with the massage and
physiotherapy, to keep moving, to continue working and to maintain function.

[331]     I accept the evidence of Dr. Hunt and the recommendation of Dr.
Greenberg that these modalities of treatment, and the need to see a physiatrist
and undertake trigger point and botox injections, are all medically justified
treatments that should be included in Mr. MacKenzie’s overall physical and
mental healthcare in the future as he endeavours to learn to live with and
manage his ongoing chronic pain.  Moreover, the proposed expenses are for a
limited duration, two years, and on that basis appear entirely reasonable.

[332]     Counsel for the plaintiff has also included a claim for
housecleaning for twice a month for two years largely on the basis of Dr.
Hunt’s written opinion.  The evidence adduced on this point, however, was
noticeably thin on support for this expense, including the lack of evidence of
any sort of expense incurred so far or an inability to engage in housework
activities.  I do not find the evidence to support the reasonableness or
medical justification for this expense and it is not allowed. 

[333]     Taking into account all of the evidence on the issue of cost of
future care, the need for continuing treatments to complement an exercise
regime which the plaintiff should be undertaking, I award Mr. MacKenzie $12,760
for the cost of future care.

4.     Special
Damages

[334]    
It is well established a plaintiff is entitled to recover as special
damages all the pre-trial expenses incurred as a result of their injuries, so
long as they were caused by the tort and the decision to incur them was
reasonable: see Jamie Cassels, Remedies: The Law of Damages (Toronto:
Irwin Law Inc., 2000) at 116.  When assessing the quantum of damages under any
recognized head, the court is concerned, ultimately, with making the party
whole.  In Milina, McLachlin J. described this animating principle at
78:

The fundamental governing
precept is restitutio in integrum. The injured person is to be restored
to the position he would have been in had the accident not occurred, insofar as
this can be done with money. This is the philosophical justification for
damages for loss of earning capacity, cost of future care and special damages.

[335]     Mr.
MacKenzie seeks compensation in the amount of $9,365.44 which represents the
total amount of expenses he has incurred as a result of the injuries he
sustained in the accident.  I have reviewed the itemized list of special
damages contained in Ex #9.  The total amount includes a deduction of $546.30
representing the amount ICBC has reimbursed Mr. MacKenzie for 18 physiotherapy
sessions and a deduction of $350 for reimbursement from ICBC for orthotics.  In
addition to expenses related to physiotherapy and massage therapy treatment,
Mr. MacKenzie has included receipts for Advil and for Able-Care Medical which
relates to charges for forms completed by his doctor.

[336]     Mr.
MacKenzie had to cancel five treatment appointments in November and December
2005 and January 2006 and was charged $20 for each as late cancellation fees
for a total of $100.  He also missed two appointments in May and July 2008 and
was charged the full appointment fee of $45 for a total of $90.  His counsel
argues he should be reimbursed for these expenses as they were incurred as a
result of the accident and he has faithfully attended all his other
appointments, which exceed 200 over the past seven years.

[337]     On the
issue of cancelled and missed appointment fees, defence counsel argues Mr.
MacKenzie had a responsibility to remember his appointments and cancel them in
a timely fashion and that under no circumstances should the defence be required
to reimburse the plaintiff for these appointments.  I agree.  While the
treatments were part of his ongoing care and efforts to deal with the symptoms
he continued to experience as a result of his injuries, Mr. MacKenzie has a
responsibility to keep track of his appointments and either attend them or
cancel them in an appropriate amount of time so as not to incur cancellation
fees.  It was his decision to cancel beyond the cancellation time frame and he
should bear the consequences of that decision.  His failure to remember his
other two appointments rests with him.  Consequently, $190 will be deducted
from the overall special damages award sought by the plaintiff.

[338]     Defence
counsel concedes the special damages from the time of the accident to January
25, 2005, less the amount for orthotics and cancellation fees and reimbursement
for physiotherapy, are proper damages that should be reimbursed as well as the
claim for Advil and fees for the doctor completing forms.  He submits the total
for special damages, less the various deductions, is $1,152.54.

[339]     Counsel
for the defendant argues that after January 25, 2005, no further treatments
expenses were incurred until September 14, 2005, and that by June 2005 Dr.
Owers was suggesting in his first report that further therapies were not
needed.  While the list of special damages in Ex #9 shows a nine month hiatus
for receipts submitted, it is equally clear on the evidence in Ex #1 there was
no hiatus in treatment between January and September 2005.  Mr. MacKenzie
actually attended for physiotherapy treatments with Ms. Kavia 18 times, and for
massage therapy with Ms. Woo five times during that nine month period. 
Although Dr. Owers included in his report a suggestion he did not think further
therapies were going to help alleviate Mr. MacKenzie’s pain, he did not suggest
they be discontinued.

[340]     It is
clear from the evidence of Mr. MacKenzie, which I do accept, he engaged in
these various therapies in order to obtain some measure of relief from the
ongoing pain he was experiencing.  The physiotherapy, including the IMS
injections, and massage therapy treatments gave him a measure of relief such
that he was able to function and continue to work between the appointments.

[341]     Mr.
MacKenzie has engaged in a number of modalities of therapy and has relied on
over the counter anti-inflammatory medication to try and address the continuing
pain he experiences as a result of his injuries. None of the expenses he
incurred could be described as unreasonable in any respect.  I find Mr.
MacKenzie is entitled to be repaid for his out of pocket expenses for all the
items included in his list of special damages less $190 for the late
cancellation and missed appointment fees.  The total amount for special damages
for Mr. MacKenzie is $9,175.44.

VII. Conclusion

[342]     In
conclusion, I award Mr. MacKenzie total damages of $393,910.37 as follows:

[343]     A 10%
reduction in the amount for the non-pecuniary damages component of the award to
reflect the conclusion Mr. MacKenzie failed to mitigate should be applied to
the above calculation.

[344]    
Mr. MacKenzie is also entitled to pre-judgment interest at the
prevailing rate and costs, unless the parties seek to make further submissions
on the issue, in which case notice must be given to the Court within 30 days of
the filing of this judgment.

“Ker J.”